GOVERNMENT

LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Outline the components of search and arrest warrants. � Describe how search and arrest warrants are executed. � Explain how bodily intrusions, the use of tracking devices, and electronic surveillance create “special

circumstances” for Fourth Amendment purposes.

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CHAPTER OUTLINE

Searches and Arrests with Warrants

C H

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OUTLINE

Introduction: Provisions of the Fourth Amendment

Components of Warrants A Neutral and Detached Magistrate A Showing of Probable Cause

Showing of Probable Cause in an Arrest Warrant Showing of Probable Cause in a Search Warrant

Particularity Particularity in an Arrest Warrant Particularity in a Search Warrant

Arrests with Warrants The Definition of Arrest

Restricted Liberty of Movement and Beyond Distinguishing between a Stop and an Arrest Distinguishing between a Stop and a Nonstop

When an Arrest Warrant Is Required Arrests in the Home Arrests in Third-Party Homes

Executing an Arrest Warrant The “Knock-and-Announce” Rule Property Damage

Permissible Degree of Force Arresting the Wrong Person

Searches with Warrants Executing a Search Warrant

Time Constraints Scope and Manner of the Search Procedure after Service of a Search Warrant Media Presence

Special Circumstances Search Warrants and Bodily Intrusions Tracking Devices, Video Recordings,

and Detection Devices Electronic Surveillance

Title III and the Electronic Communications Privacy Act The Foreign Intelligence Surveillance Act

Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Provisions of the Fourth Amendment

Five types of activities are governed by the Fourth Amendment:

• arrests with warrants, • arrests without warrants, • searches with warrants, • searches without warrants, and • the seizure of evidence.

This chapter’s primary focus is on arrests and searches with warrants. Warrantless actions are discussed in the next three chapters.

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106 Part 2 • Search and Seizure

The seizure of evidence is often a consequence of arrests and searches with and without warrants. However, if a search or arrest with or without a warrant violates the Fourth Amendment, any evidence seized will be inadmissible in court due to the exclusionary rule. Because of the exclusionary rule, little attention is given here (or in the next three chapters) to the seizure of evidence independent of an arrest or search. While it is possible for a seizure to take place in the absence of a search or arrest (e.g., Soldal v. Cook County, 506 U.S. 56 [1992]), rare is the occasion in which the police (or a private individual acting in a governmental capacity) can seize evidence without a search or an arrest.

The Fourth Amendment seems fairly clear with respect to warrants: “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Despite this seemingly simple language, however, the Fourth Amendment’s warrant requirement has been litigated extensively in the courts. As indicated in Chapter 3, the courts have focused on the meaning of probable cause as well as acceptable sources of information used to determine the presence of probable cause. Many decisions have also focused on the Fourth Amendment’s requirement that warrants be supported by “Oath or affirmation” and on the particularity requirement. This chapter gives special attention to these latter issues.

Even though there are many cases involving searches and arrests with warrants, the law is actually very clear with respect to when a warrant is required. Generally, a search warrant is required for any type of search, regardless of where it is conducted, provided that (1) there are no exigent (i.e., emergency) circumstances and (2) the search is not one justified on so-called administrative grounds. Even searches pursuant to arrest and searches under the automobile exception are justified in terms of exigencies. Arrest warrants, by contrast, are required for arrests in private places, provided exigent circumstances are absent.

COMPONENTS OF WARRANTS

An arrest warrant or a search warrant (see Figures 4.1 and 4.2 for examples) each has three essential components. First, it must be issued by a neutral and detached magistrate. Second, a showing of probable cause is required. Finally, it must conform to the Fourth Amendment’s particularity requirement. The first requirement—a neutral and detached magistrate—is the same regardless of the type of warrant. However, the probable cause and particularity requirements differ, depending on the type of warrant in question. These requirements are considered in the following subsections.

A Neutral and Detached Magistrate

The logic for requiring a neutral and detached magistrate in the issuance of an arrest or a search warrant was described by the Supreme Court over 50 years ago in Johnson v. United States (333 U.S. 10 [1948]):

The point of the Fourth Amendment . . . is not that it denies law enforcement the support of the usual inferences reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. (pp. 13–14)

Most judges are considered neutral and detached. Even so, the Supreme Court has focused, in a number of cases, on this first critical warrant requirement. For example, in

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Chapter 4 • Searches and Arrests with Warrants 107

Coolidge v. New Hampshire (403 U.S. 443 [1971]), the Court declared that a state attorney general cannot issue a search warrant. State attorneys general are chief prosecutors and thus inclined to side with law enforcement officers. Similarly, in United States v. United States District Court (407 U.S. 297 [1972]), the Court decided that the president, acting through the attorney general of the United States, cannot authorize electronic surveillance without judicial approval. Justice Powell observed,

The Fourth Amendment does not contemplate the executive officers of Government as neutral and detached magistrates. Their duty and responsibility is to enforce the laws, to investigate and to prosecute. . . . [T]hose charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech. (p. 317)

There have also been some cases in which the Court has focused on the extent to which judges can be viewed as neutral and detached. For example, in Lo-Ji Sales, Inc. v. New York (442 U.S. 319 [1979]), a magistrate issued a warrant for two obscene items, but

FIGURE 4.1 Sample Arrest Warrant

WARRANT OF ARREST ON COMPLAINT

(RCr 2.04,2.06) (Caption)

TO ALL PEACE OFFICERS

You are hereby commanded to arrest ____________________

(Name of defendant)

and bring him forthwith before judge of the District Court (or, if he be absent or unable to act, before the nearest available magistrate) to answer a complaint made by ____________ charging him with the offense of reckless driving.

Issued this ____________ day of ____________, 19____________.

___________________________ Judge

(Indorsement as to bail)

The defendant may give bail in the amount of $_________. ___________________________ Judge

(Amended October 14, 20__, effective January 1, 20__.)

Coolidge v. New Hampshire (403 U.S. 443 [1971])

Lo-Ji Sales, Inc. v. New York (442 U.S. 319 [1979])

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he also authorized the police to seize any other items that he might find obscene upon examination of the location to be searched. The magistrate then accompanied the officers on the search, discovered items that he deemed to be obscene, and added them to the initial warrant. The items were then admitted into evidence against the defendants. The Supreme Court declared that the magistrate was not acting in a neutral and detached capacity: “[H]e was not acting as a judicial officer but as an adjunct law- enforcement officer” (p. 327).

Finally, if a magistrate has a financial interest in the issuance of warrants, he or she cannot be considered neutral and detached. This issue was presented to the Supreme Court in Connally v. Georgia (429 U.S. 245 [1977]). A Georgia statute autho- rized unsalaried magistrates to receive five dollars for each warrant issued but no money for warrant applications that were denied. The Court unanimously held that the statute violated the Constitution, citing that “judicial action by an officer of a court who has ‘a direct, personal, substantial, pecuniary interest’ in his conclusion to issue or to deny the warrant” (p. 250) cannot possibly be considered neutral and detached.

A Showing of Probable Cause

“Probable cause” was defined in Chapter 3; as such, there is no need to revisit the definition here. However, it is important to point out that probable cause is required as a component of a valid warrant. Also, the meaning of probable cause—as opposed to the sources of information that give rise to it—differs, depending on whether an arrest or a search warrant is issued.

SHOWING OF PROBABLE CAUSE IN AN ARREST WARRANT The showing of probable cause in an arrest warrant is not particularly complex. The officer applying for the war- rant must simply show probable cause that the person to be arrested committed the crime. Acceptable sources of information for a probable cause showing were described in Chapter 3. When applying for an arrest warrant, the officer is not required to show probable cause that the suspect will be found at a particular location. In Payton v. New York (445 U.S. 573 [1980]), the majority stated, “If there is sufficient evidence of a citizen’s participation in a felony to persuade a judicial officer that his arrest is justified, it is constitutionally reasonable to require him to open his doors to the officers of the law” (pp. 602–603).

SHOWING OF PROBABLE CAUSE IN A SEARCH WARRANT The showing of probable cause in a search warrant is twofold. First, the officer applying for the search warrant must show probable cause that the items to be seized are connected with criminal activity. Second, the officer must show probable cause that the items to be seized are in the location to be searched. Note that this second requirement does not apply to an arrest warrant.

Particularity

The Fourth Amendment expressly provides that warrants particularly describe the “place to be searched, and the persons or things to be seized.” Not surprisingly, the particularity requirement differs, depending on the type of warrant issued. For an arrest warrant, the particularity requirement is easily satisfied. The particularity requirement for a search warrant, however, is far more complex.

PARTICULARITY IN AN ARREST WARRANT There are two ways to satisfy the Fourth Amendment’s particularity requirement with regard to an arrest warrant. First, if the suspect’s name is known, then simply supplying his or her name is enough to meet the

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FIGURE 4.2 Example of a Search Warrant That Meets the Particularity Requirement

IN THE SUPERIOR COURT DISTRICT, EAST DESERT DIVISION COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA

SEARCH WARRANT (PENAL CODE 1529)

THE PEOPLE OF THE STATE OF CALIFORNIA: To any Sheriff, Constable, Peace Officer or Policeman in the County of San Bernardino:

Proof, by Affidavit, having been this day made before me by:

ROGER PEREZ Deputy Sheriff

San Bernardino County Sheriff’s Department Morongo Basin Station

THAT THERE IS PROBABLE CAUSE FOR BELIEVING THAT:

There are narcotics, controlled substances and restricted substances records and docu- ments which tend to show that a felony to wit, Transportation of Controlled Substances, in violation of Health and Safety Code Section 11379, Possession for Sales of Controlled Substances, in violation of Health and Safety Code Section 11378, Sales of Controlled Substances, in violation of Health and Safety Code Section 11379, is being committed in the County of San Bernardino, State of California.

YOU ARE THEREFORE COMMANDED at any time of the day or night ____________ to make a search of:

PREMISES TO BE SEARCHED:

The premises located at:

2400 MAIN STREET, #12 TOWN OF PLEASANTVILLE

COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA

particularity requirement. In some situations, however, the suspect’s name is not known. Then, a specific description of the suspect is sufficient and a “John Doe” warrant will be issued. As long as other officers may locate the suspect with reasonable effort, the suspect’s name is not required.

Even so, an arrest warrant is rarely issued without the suspect’s name. This is not to suggest, however, that the police almost always know the suspect’s name. Remember, there are many occasions involving warrantless arrests (e.g., after a suspect is caught fleeing the bank he or she just robbed) in which an arrest can be made without knowledge of the suspect’s name. As long as probable cause is in place, the name of the suspect is not essential (regardless of whether a warrant is issued).

Chapter 4 • Searches and Arrests with Warrants 109

Figure 4.2 continued

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110 Part 2 • Search and Seizure

The location is further described as a multi-unit apartment complex located on the east side of Main Street south of Oak Dr. The complex consists of numerous two-story build- ings with each building having multiple apartments. Apartment 12 is located in building “C”, which is located at the northwest corner of the complex. The exterior is tan stucco with grayish/blue trim and a gray composite shingle roof. Apartment 12 has the numbers “12” which are black and approximately 4 inches tall, affixed to the wood trim to the right of the front door, which faces north.

And all rooms, attics, basements, cellars, safes, vaults, closed or locked containers, trash receptacles and other parts therein, surrounding grounds, garages, sheds, storage rooms, vehicles, campers, trailers and outbuildings of any kind located thereon.

And all persons located on or at the premises. And all vehicles belonging to or in the control of said persons.

And you are hereby authorized to answer all incoming telephone calls received at the premises and the vehicles to be searched and to further seize and record all the incoming telephonic pager numbers and messages received at the premises and the vehicles to be searched and to seize all telephonic “fax” messages received at the premises and the vehicles to be searched. And to determine if the aforementioned telephone calls, telephonic messages, or “faxed” messages are related to illegal activities.

FOR THE FOLLOWING PROPERTY:

Methamphetamine and paraphernalia commonly associated with the possession, pack- aging, and sale of methamphetamine such as scales, weighing devices and measuring devices; packaging materials including paper bindles, glass vials, plastic baggies, foil; processing materials including sifters, filters, screens and cutting agents; recordation of the purchase and/or sales of methamphetamine including ledgers, notebooks, pay/owe sheets,customer lists, video tapes and phone answering machine tape record- ings, personal phone books; personal photographs which document the possession, sales and/or possession for sales of methamphetamine; and proceeds from the sales of methamphetamine consisting of currency.

Financial records including expenses incurred in obtaining chemicals and apparatus and income derived from sales of narcotics and other controlled substances as well as records showing legitimate income or the lack thereof and general living expenses.

Serial numbers, model numbers, identifying marks and descriptions of all personal property including, but not limited to, televisions, radios, stereo equipment, and other electrical devices, appliances, hand and power tools, firearms, bicycles, items of jewelry, silver, gold and coins which can be identified as stolen and/or evidence of the crime of Burglary and/or Possession of Stolen Property or property which is readily traded for narcotics in lieu of cash.

All articles of personal property which will identify persons in control of the premises, storage areas or containers where controlled substances may be found, including keys to those areas that may be locked, rental agreements and receipts, deeds of trust, documents or papers bearing names, canceled mail, paycheck stubs and other employment records, tax documents and personal identification. IS

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Maryland v. Garrison (480 U.S. 79 [1987])

Chapter 4 • Searches and Arrests with Warrants 111

PARTICULARITY IN A SEARCH WARRANT The particularity requirement for a search war- rant is twofold. First, the warrant must specify the place to be searched. Next, the warrant must specify the items to be seized. The reason for this particularity requirement stems from the framers’ concerns with so-called general warrants. General warrants, which were issued by the English Crown, permitted basically limitless searches for evidence of treason.

Contrary to popular belief, a search warrant does not need to state with absolute precision the place to be searched. It “is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended” (Steele v. United States, 267 U.S. 498 [1925], p. 503). However, the items mentioned in the warrant should be described with sufficient specificity that a reason- able officer would know where to look for them.

In situations where the warrant incorrectly specifies the place to be searched, the courts will focus on the reasonableness of the officers’ mistake. For example, in Maryland v. Garrison (480 U.S. 79 [1987]), police officers obtained a warrant to search the person of Lawrence McWebb and the premises known as “2036 Park Avenue, third-floor apartment.” They believed that McWebb’s apartment occupied the entire third floor when, in fact, there were two apartments on that floor—one of which belonged to Garrison. The Court held that the warrant was valid for several reasons: It was based on information by a trusted informant, and the police had inquired with the local utility company and were given the impression that there was only one apartment on the third floor.

As for the items to be seized, the warrant must clearly specify what the police wish to seize. The case of Lo-Ji Sales, Inc. v. New York is again illustrative. Recall from the discussion about the neutral and detached magistrate requirement that the magistrate in Lo-Ji Sales issued a warrant that named two specific items but also permitted the police to seize anything the magistrate considered obscene. The Court unanimously held that the warrant failed to “particularly describe . . . the things to be seized” (p. 319).

DECISION-MAKING EXERCISE 4.1

Who Was That Bald Man?

The police have in their possession the video from a security camera at a bank that was recently robbed. The suspect is a white male, six feet tall, and has a mustache, a bald head, a scar on his left cheek, and a tattoo of a skull

and crossbones on his neck. May the police apply for an arrest warrant based on this information, even if they never learned of the suspect’s name prior to applying for the warrant?

AND IF YOU FIND THE SAME OR ANY PART THEREOF, to bring it forthwith before me at my courtroom

GIVEN UNDER MY HAND, and dated this 17th day of September 2002.

James D. Franklin

Judge of the Superior Court East Desert Division County of San Bernardino State of California

Source: Used courtesy of the San Bernardino County Sheriff’s Department.

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Andresen v. Maryland (427 U.S. 463 [1976])

112 Part 2 • Search and Seizure

Contrast Lo-Ji Sales with Andresen v. Maryland (427 U.S. 463 [1976]), in which the Court upheld a warrant that authorized the seizure of several items “together with other fruits, instrumentalities and evidence of crime at this [time] known” (p. 479). The Court noted that the crime in question was particularly complex and “could be proved only by piecing together many bits of evidence” (p. 482). This is a controversial decision, indeed, because it suggests that, under certain circumstances, the police can circumvent the Fourth Amendment’s particularity requirement.

If the police have a hunch that an item is in a place to be searched but do not include the item in the application for a warrant, the item can be seized under the doctrine of plain view as long as the police are legally authorized (by obtaining a warrant) to be on the premises. Plain view is discussed in the next chapter. Also, if a warrant does not particularly describe the items to be seized (or the place to be searched), then it is not automatically deemed in violation of the Fourth Amendment. If there is an objectively reasonable basis for the officers’ mistaken belief, then the war- rant will most likely be upheld (see Massachusetts v. Sheppard, 468 U.S. 981 [1981]). Also, just because an item is not listed in a warrant does not mean that it cannot be seized. As will be considered in the next chapter, items in plain view can be seized, provided certain conditions are met.

ARRESTS WITH WARRANTS

Justice Powell once stated that “a search may cause only an annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimensions only when it turns up evidence of criminality [but an] arrest . . . is a serious personal intrusion regardless of whether the person seized is guilty or innocent” (United States v. Watson, 423 U.S. 411 [1976], p. 428). Even so, an unconstitutional arrest has little significance by itself in criminal procedure. The reason for this is that the remedy for an illegal arrest is simply a release from custody. It is possible that a person unlawfully arrested may sue, but little recourse is generally available to a person who is unlawfully arrested. Why, then, focus attention on the constitutionality of arrests? The answer is that the constitutionality of an arrest is frequently critical in determining whether seized evidence is admissible in court.

Consider this example: Assume that a police officer arrests a defendant without probable cause. Such an arrest is automatically unconstitutional. Assume also that the officer finds an illegal firearm on the defendant and turns it over to the prosecutor, who decides to use it against the defendant at his trial on firearm charges. The defendant will almost certainly seek to have the firearm excluded as evidence on the grounds that it resulted from an unlawful arrest. In other words, the defendant will argue that the firearm is “fruit of the poisonous tree,” as discussed in Chapter 2.

This hypothetical situation is the main reason it is important to study the law of arrest. It is not that the legality of an arrest matters by itself. What is important is that an unconstitutional arrest can lead to the exclusion of evidence. Virtually all arrest cases

DECISION-MAKING EXERCISE 4.2

The Fourth Amendment’s Particularity Requirement

A police officer obtained a search warrant from a judge that authorized the seizure of “numerous marijuana plants and growing equipment” at 123 Main Street. Does this warrant

comport with the Fourth Amendment’s particularity require- ment? What if the warrant also authorized the seizure of “stolen stereo equipment”?

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Chapter 4 • Searches and Arrests with Warrants 113

that make it to the Supreme Court have something in common: A convicted defendant is seeking to have his or her arrest declared unconstitutional so the evidence that led to his or her conviction will be suppressed and/or the conviction reversed.

The Definition of Arrest

Invariably, students of criminal procedure become confused when books and course instructors use terms like seizure, stop, and arrest with little attention to the fact that each term has a very distinct meaning. Think of stops and arrests as being different types of seizures. Additionally, think of each type of seizure as falling along a scale of seriousness: An arrest is the most intrusive type of seizure, and a stop is the next most intrusive. Apart from those simple distinctions, though, it should become clear that there is no easy, ready-made definition of a stop or an arrest (the glossary offers definitions, but even they are imperfect).

Why distinguish between stops and arrests? Arrests require probable cause; stops (the focus of Chapter 6) only require reasonable suspicion. If the circumstances surrounding a stop are such that it evolves into an arrest, then the arrest will be declared unconstitutional and the evidence will be thrown out, assuming the officer did not have probable cause.

RESTRICTED LIBERTY OF MOVEMENT AND BEYOND Prior to the civil rights era, the Supreme Court suggested that anything the police do to restrict a person’s move- ment constitutes an arrest. For example, in Henry v. United States (361 U.S. 98 [1959]), the Court found that an arrest occurred when the police stopped a car whose occupants were suspected of transporting illegal alcohol. According to the Court, “When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete” (p. 103). Since the police in Henry did not have probable cause to stop the men, the so-called arrest was deemed unconstitutional.

Recently, though, the Supreme Court has held that the police must do more than restrict a person’s movement for an arrest to occur. In Terry v. Ohio (392 U.S. 1 [1968]), the case that essentially altered the definition of arrest for all time, the Court ruled that a suspect’s movements can be restricted without such activity being considered an arrest. The Court distinguished between arrests that “eventuate in a trip to the station house and prosecution for crime” and lesser intrusions that can occur “whenever a police officer accosts an individual and restrains his freedom to walk away” (p. 16).

DISTINGUISHING BETWEEN A STOP AND AN ARREST In one sense, distinguishing between an arrest and a lesser type of intrusion, such as a stop, is easy. For example, when a suspect is handcuffed, placed in the back of a patrol car, and driven to the police station for booking, an arrest has clearly occurred. Alternatively, if a person is accosted by a single police officer and asked general questions about his or her suspected involvement in a crime, an arrest has not occurred. However, there are many police/cit- izen encounters that fall between these two extremes. A stop can evolve into an arrest if the circumstances are just so. A seizure that falls short of a formal arrest may be so intrusive as to constitute a de facto arrest, in which case probable cause, rather than reasonable suspicion, would be required to make the encounter constitutional.

Generally, the courts will weigh (1) the duration of a stop and (2) the degree of the intrusion in assessing whether a stop evolved into an arrest. Sometimes, the courts also refer to the officers’ intentions and the manner in which the stop took place. The importance of these issues—particularly, degree and duration—is evidenced by the Supreme Court’s opinion in Florida v. Royer (460 U.S. 491 [1983]):

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Davis v. Mississippi (394 U.S. 721 [1969])

114 Part 2 • Search and Seizure

The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is neces- sary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. (p. 500, emphasis added)

Several Supreme Court cases are illustrative. Four categories of such cases can be identified: (1) cases involving detention in a stationhouse or similar structure, such as the investigation room in an airport; (2) cases involving an encounter between police and citizens on the street; (3) cases involving a border detention; and (4) cases involving detention in the home. Each category is briefly considered in the paragraphs that follow.

With regard to stationhouse detentions, in Davis v. Mississippi (394 U.S. 721 [1969]), several youths, including Davis, were taken into custody and fingerprinted as part of a rape investigation. The officers did not have probable cause, and Davis was held for two days and interrogated throughout his detention. On the basis of his fingerprints and confession, Davis was charged, convicted, and sentenced to death. The Supreme Court reversed Davis’s conviction on the grounds that detention was too long, too intrusive, and unsupported by probable cause. The Court did not explicitly address the distinction between a stop and an arrest, but it intimated that because probable cause was required to detain Davis, the police officers had effectively arrested him.

In a similar case, Dunaway v. New York (442 U.S. 200 [1979]), the Supreme Court ruled that stationhouse detentions require probable cause. In that case, police officers took a man into custody during the course of a robbery/murder investigation. They read the man the Miranda warnings and subjected him to questioning—without probable cause. The Supreme Court reversed the man’s subsequent conviction. Again, the Court did not decide on the arrest issue, but it did declare that custodial interroga- tion, such as that in Dunaway, must be supported by probable cause. The Court further declared that Terry was inapplicable because it permits only a “limited violation of indi- vidual privacy” while ensuring “interests in both crime prevention and detection and in the police officer’s safety” (p. 209).

In Florida v. Royer, mentioned earlier, the Court ruled again that certain forms of detention can require probable cause, rather than reasonable suspicion. In that case, officers in an airport asked a man to accompany them into a room because he was sus- pected of carrying narcotics. The officers found drugs in the man’s luggage, and he was arrested. The Court declared that the detention, which lasted 15 minutes, constituted an arrest, which required probable cause. As Justice White stated, “What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions” (p. 503). What is important in this case, as well as the preceding two, was that the detention was not consensual. If a person consents to the detention, he or she is not considered under arrest.

It is important to note, also, that not all nonconsensual encounters between police and citizens amount to arrests. As will be addressed later, detentions at the national borders and in other locations are permissible under certain circumstances. In addi- tion, there are situations in which the courts have declared that holding a person for investigative purposes may not arise to the level of an arrest, requiring probable cause. For example, even though the Court reversed a defendant’s conviction in Davis v. Mississippi, it did state that “because of the unique nature of the fingerprinting process, [detentions for the purpose of obtaining fingerprints] might, under narrowly

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Chapter 4 • Searches and Arrests with Warrants 115

defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense” (p. 727).

There are also situations in which encounters on the street (as opposed to questioning in a stationhouse or its equivalent) can evolve into arrests. In Terry, the Supreme Court noted that a stop must be brief, suggesting that any stop that is not brief may require probable cause. While the Supreme Court has been hesitant to put a precise time limit on the length of a stop, it made this statement in United States v. Sharpe (470 U.S. 675 [1985]):

While it is clear that “the brevity of the invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion,” we have emphasized the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate these purposes. . . . Much as a “bright line” rule would be desirable in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria. (p. 685)

As already noted, Fourth Amendment requirements are significantly relaxed at the nation’s borders. Recall that in United States v. Montoya de Hernandez (473 U.S. 531 [1985]), the Supreme Court upheld law enforcement officials’ 16-hour detention of a suspected drug “balloon swallower” while they waited for nature to take its course, so to speak. The majority approved of the delay because the defendant’s detention “resulted solely from the method by which she chose to smuggle illicit drugs into the country” (p. 559). Justices Brennan and Marshall strongly dissented, however, pointing out that the detention in this case—“indefinite confinement in a squalid back room cut off from the outside world, the absence of basic amenities that would have been provided to even the vilest of hardened criminals, repeated strip searches” (p. 556)— was effectively an arrest, thus requiring probable cause.

Finally, a handful of cases have involved detentions in the home, focusing, in particular, on the extent to which detention of a person (e.g., owner, renter, or guest) in a home can evolve into a full-blown arrest. Somewhat surprisingly, nonconsensual encounters in the home between residents and the police do not always rise to the level of an arrest. For example, in Beckwith v. United States (425 U.S. 341 [1976]), the Supreme Court ruled that questioning by IRS agents of a defendant in his living room was not an arrest or even custodial in nature. Contrast this decision with that of Rawlings v. Kentucky (448 U.S. 98 [1980]), in which several individuals were detained at a house where officers had served an arrest warrant but had failed to find the person named in the warrant. The Court declared that this type of detention amounted to an arrest because there was no probable cause to detain the individuals not named in the warrant. In addition, the detention lasted 45 minutes, which was unnecessarily long, under the circumstances (though not as long as some detentions that the Supreme Court has upheld).

DECISION-MAKING EXERCISE 4.3

What Type of Seizure?

The police concluded that a man who was suspected of rape was also responsible for a recent burglary/rape. Without a war- rant and without probable cause, the police went to the sus- pect’s home to obtain fingerprints. Arriving at the home, the police spoke to the suspect on his front porch, and when he

expressed reluctance to accompany them to the stationhouse, one officer said that they would arrest him. The suspect then replied that he would rather go to the station than be arrested. He was then taken to the station and fingerprinted. Does the police action constitute an arrest?

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The Supreme Court seemed to backpedal on the Rawlings decision in Michigan v. Summers (452 U.S. 692 [1981]), decided a year later. In Summers, the Court held that an individual can be detained during a search of his or her house, without such activity rising to the level of an arrest, as long as the police have a search warrant and even if there is no probable cause to arrest him or her. In support, the Court noted that (1) such detentions are not as embarrassing or stigmatizing as public detentions and (2) when there is probable cause to search for evidence of criminal activity, it is reasonable to assume that the person who lives on the premises is involved. See Figure 4.3 for a summary of this discussion.

DISTINGUISHING BETWEEN A STOP AND A NONSTOP Remember that it is important to distinguish not just between a stop and an arrest but between a stop and a nonstop. If a stop occurs when a reasonable person would not believe that he or she is free to leave, then a nonstop occurs when a reasonable person would believe that he or she is free to leave. A nonstop requires no justification at all because it is not considered a seizure within the meaning of the Fourth Amendment. As will be discussed in Chapter 6, police officers are free to confront people and ask questions of them, as long as the people are free to leave. If the people are stopped, however, then reasonable suspicion is required. And again, if an arrest is made, the requisite standard of justification is probable cause.

Summary. Clearly, distinguishing between arrests and lesser intrusions, such as investigative stops, can be confusing. At one extreme, a seizure that is accompanied by handcuffs, or words to the effect that the person is “under arrest,” is always considered an arrest. At the other extreme, when a person is confronted by a police officer and is not free to leave, but nevertheless briefly detained and not interrogated, an arrest has not occurred. Where the distinction is confusing is in the gray area between a stop and an arrest. A stop can evolve into a de facto arrest in a number of circumstances. The courts will give weight to four factors in making their decision: (1) the purpose of

FIGURE 4.3 Factors Used to Distinguish between a Stop and an Arrest

All four of these criteria should be considered together. For example, if a police/citizen encounter occurs at the stationhouse, the encounter may not be considered an arrest. However, if the encounter is overly lengthy and the citizen is not free to leave, then an arrest has taken place.

1. Purpose a. Intent to arrest = Arrest b. No intent to arrest = Terry stop or nonstop

2. Manner a. Person not free to leave = Arrest or Terry stop b. Person free to leave = Nonstop

3. Location a. At police station or in private = Arrest or Terry stop b. Public = Arrest, Terry stop, or nonstop

4. Duration a. Lengthy = Arrest b. Short = Terry stop or nonstop

Michigan v. Summers (452 U.S. 692 [1981])

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Chapter 4 • Searches and Arrests with Warrants 117

the stop (e.g., to question or interrogate a person); (2) the manner in which the stop takes place (e.g., stopped by one officer or several); (3) the location in which the stop takes place (e.g., stationhouse, street, or home); and (4) the duration of the stop. No single factor is necessarily determinative. If, however, a person is detained by several officers in a stationhouse for several days so as to be interrogated, then the court will almost certainly consider such police activity tantamount to an arrest.

In conclusion, this section has endeavored to provide a definition of arrest, but in fact, no clear definition really exists. The courts must weigh each case individually. Fortunately, most people know an arrest when they see it.

When an Arrest Warrant Is Required

Under common law, if an arresting officer had probable cause to believe that (1) a person was committing or had committed a felony or (2) a person was committing a certain mis- demeanor in the officer’s presence, then an arrest warrant was not required. This held true regardless of where the arrest took place, even if it was effected in someone’s private home (e.g., Trupiano v. United States, 334 U.S. 699 [1948]). The only real situation in which an arrest warrant was required was for a misdemeanor committed out of view of the arresting officer. The logic for this was set forth by the Supreme Court in Carroll v. United States (267 U.S. 132 [1925]):

The reason for arrest for misdemeanors without warrant at common law was to promptly suppress breaches of the peace . . . while the reason for arrest without a warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant. (p. 157)

Since 1925, the Supreme Court has stuck to the rule set forth in Carroll, subject to two exceptions. First, an arrest in someone’s private home cannot be made with- out a warrant, unless exigent circumstances are present. Second, an arrest in the home of a third party is impermissible without a warrant, again providing no exigent circumstances are in place. An example of a third-party situation is one in which the police seek to arrest a person who is visiting a friend’s house. One additional restriction was recognized in Gerstein v. Pugh (420 U.S. 103 [1975])— namely, a judicial determination of probable cause is required when an arrest is made without a warrant (see Chapter 9).

The remainder of this section considers two types of arrest: (1) arrests in the home and (2) arrests in third-party homes. With rare exceptions, a warrant is required for each.

ARRESTS IN THE HOME In the landmark decision of Payton v. New York (445 U.S. 573 [1980]), the Supreme Court held that the Fourth Amendment prohibits a warrantless, non- consensual entry into a private home for the purpose of making an arrest. In that case, police officers, after two days of investigation, had assembled enough evidence to establish probable cause to believe that Payton had murdered the manager of a gas station. The officers went to Payton’s apartment to arrest him. When no one answered the door, they used a crowbar to open the door and entered the apartment. They did not find Payton, but they did find, in plain view, a .30 caliber shell casing lying on the floor. They seized it and admitted it into evidence at Payton’s trial. Payton ultimately surrendered to the police and was indicted for murder. The lower court admitted the shell casing into evidence, but the Supreme Court reversed, stating, “In terms that apply equally to seizures of property and to seizures of

Payton v. New York (445 U.S. 573 [1980])

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persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant” (p. 590). Justice Stevens also stated, citing an earlier case (United States v. United States District Court), that “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (p. 585). In Payton, then, the Court handed down a bright-line rule: An arrest in the home must be accompanied by a warrant in the absence of exigent circumstances. The decision in Kirk v. Louisiana (536 U.S. 635 [2002]) reaffirmed this.

ARRESTS IN THIRD-PARTY HOMES Not long after Payton, the Supreme Court decided Steagald v. United States (451 U.S. 204 [1981]). Justice Marshall expressed concern that although an arrest warrant may protect a person “from an unreasonable seizure, it [does] absolutely nothing to protect [a third party’s] privacy interest in being free from an unreasonable invasion and search of his home” (p. 213). Accordingly, the Court decided that in such situations, the police must obtain not only an arrest warrant for the person they seek but also a separate warrant to search the third-party residence for the arrestee.

The facts in Steagald were as follows: Acting on an arrest warrant issued for a per- son by the name of Lyons, Drug Enforcement Administration (DEA) agents entered the home of Steagald. This entry was made without a warrant. While searching Steagald’s home for Lyons, the agents found cocaine and other incriminating evidence, but they did not find Lyons. Steagald was arrested and convicted on federal drug charges. He appealed, and the Supreme Court eventually reversed Steagald’s conviction. The Court offered the following in support of its position:

Two distinct interests were implicated by the search in this case—Ricky Lyons’ interest in being free from an unreasonable seizure and petitioner’s [Steagald’s] interest in being free from an unreasonable search of his home. Because the arrest warrant for Lyons addressed only the former interest, the search of petitioner’s home was no more reasonable from petitioner’s perspective that it would have been if conducted in the absence of any warrant. (p. 216)

The Court’s decision in Steagald was not without opposition. Justices Rehnquist and White dissented, arguing that the police and judges “will, in their various capacities, have to weigh the time during which a suspect for whom there is an outstanding arrest warrant has been in the building, whether the dwelling is the suspect’s home, how long he has lived there, whether he is likely to leave immediately, and a number of related

DECISION-MAKING EXERCISE 4.4

A Public or Private Arrest?

Federal drug agents had probable cause to arrest John Crook. They knew he was staying at the local motel, but they did not know what room he was in. The agents asked hotel personnel to supply the room number, which they did, and then the agents went to that room. Standing in the hall, one of the agents identified himself to a housekeeping em- ployee and asked him to knock on the door of the room and check whether anyone was in it. The employee knocked and called out, “Housekeeping.” Crook opened the door. The agents recognized him immediately, at which point one of

the agents drew his weapon, pointed it at Crook, and ordered him to raise his hands. Crook immediately raised his hands and said to the agents, “I won’t give you guys any trouble. I’ve got a gun in my right pocket.” Both agents, with their weapons drawn, entered the room. Crook’s gun was removed, and he was advised that he was under arrest. Was a warrant required in this situation? Or, in other words, could this be considered a public arrest? Note that based on the facts supplied, there are no exigent circumstances in place.

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FIGURE 4.4 Summary of Arrest Warrant Requirements

1. When an arrest warrant is required: a. In a home/residence absent exigent circumstances b. In a third-party home; a separate search warrant is also required

2. When an arrest warrant is not required: a. The arrest is made in public (see Chapter 5) b. Exigent circumstances exist (see Chapter 5) c. Consent is given (see Chapter 7)

and equally imponderable questions” (p. 213). The majority countered by pointing out that if the police did not need warrants to enter third-party residences, “[a]rmed solely with an arrest warrant for a single person, [the police] . . . could search all the homes of that individual’s friends and acquaintances” (p. 215). Such a possibility would be controversial, indeed.

Thus, having an arrest warrant does not allow authorities to enter a third-party residence. A warrantless entry into a third-party residence violates the third party’s rights. There are two exceptions to this rule, however. First, if the third party consents to a request by police, a search warrant won’t be necessary (but the arrest warrant will still be necessary). Second, if there is an emergency, or “exigent circumstances,” a warrant may not be required. See Figure 4.4 for a summary of situations in which an arrest warrant is required/not required.

Executing an Arrest Warrant

Assuming a valid warrant is in place, the police cannot use any means available to effect the arrest. For example, they cannot kick in a door without having any reason to do so. Similarly, they cannot use deadly force unless absolutely necessary and for the most dangerous of criminal offenders. In almost all cases, the procedures for executing an arrest warrant are laid out in police department policy manuals. One such policy from the Portland (Oregon) Police Bureau is reprinted in Figure 4.5.

The following subsections focus on four important issues with regard to the service of arrest warrants:

• when the police are required to “knock and announce” their presence, • whether property damage is acceptable, • when deadly force can be used, and • the consequences of arresting the wrong person.

THE “KNOCK-AND-ANNOUNCE” RULE Under common law, the police were entitled to break into a house to make an arrest after announcing their presence and their reason for being there. Today, the method of entry the police can use to serve warrants (arrest and search) is usually set forth in legislation. With regard to federal law enforcement, for example, 18 U.S.C. Section 3109 states that an officer “may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance.”

The law also generally requires that police officers announce their presence and state their authority (e.g., “Police officers! Search warrant!”). Doing so is important for several reasons: (1) it helps avoid needless destruction of property; (2) it helps prevent

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FIGURE 4.5 Arrest Warrant Policy (Portland, OR, Police Bureau)

840.00 ARREST WITH WARRANT

An arrest warrant: An order in writing, in the name of the state, signed by a magistrate with his/her name of office, commanding the arrest of the defendant.

An arrest warrant must specify the name of the defendant. If unknown, the defen- dant may be designated by a fictitious name with a statement therein that his true name is unknown. An arrest warrant must also state a crime in respect to which the magis- trate has authority to issue the warrant.

Obtaining an Arrest Warrant

A complainant or an investigator will appear before a deputy district attorney and justify the complaint.

a. All felony complaints will be handled either by the Detective Division, or by the complainant.

b. On a felony complaint, an investigator may accompany the complainant to the District Attorney’s office and assist if necessary.

c. The investigator may, with the concurrence of a deputy district attorney, justify a felony complaint without the complainant being present.

If justified, an affidavit will be:

a. Prepared by a deputy district attorney or investigator. b. Signed by the complainant or investigator. c. Notarized. d. Sent to a magistrate.

In felony cases, complainants or investigators will accompany the affidavit and swear an oath before the magistrate. The magistrate will examine the affidavit and, if justified, will issue an arrest warrant. On a felony complaint, the district attorney will have the option of bypassing the magistrate and submitting the complaint directly to the Grand Jury.

Arrest Warrant Processing Responsibilities

The Multnomah County Sheriff’s Office (MCSO) is responsible for the physical mainte- nance of all warrants within Multnomah County. They will ensure the entry, modification and clearance of warrants into the computer, publish a computer printout of Warrants on File by Precinct and also a Notice of Warrant on File record card. The record card will be used to record the attempt or service of a warrant.

The Bureau restricts warrant service to the following guidelines:

a. Major Warrants (felony, Class A misdemeanor, and major traffic offense warrants) can be served on any day, at any hour, when the defendant can be found.

b. Minor Warrants (Class B and C misdemeanor, violations, traffic infractions, warrants, etc.) will generally be served during hours that will minimize the inconvenience to the defendant.

c. Exceptions, caused by unusual circumstances, require approval by an immediate supervisor.

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The Bureau will actively undertake the service of arrest warrants issued within the City. The MCSO will deliver daily to the Bureau’s Records Division, Mail Distribution Section, envelopes addressed to the appropriate precincts. The envelopes will contain computer-produced listings of Warrants on File Notices issued the previ- ous day and a Warrant on File Record card for each entry.

a. Precinct commanders will be responsible for the maintenance of the Warrant File Notices computer listing. The computer listings will be retained by each Precinct for thirty (30) days and will reflect the following information: 1. The assignment of the Notice of Warrant on File card to a relief officer and the

date of assignment. 2. The final disposition, whether served or an attempt of service is made, and the date. 3. The date the warrant card is sent back to MCSO (must be ten (10) days of date

assigned).

b. Assigned district officers will make at least one documented attempt to serve the assigned warrant. The attempt will be noted in the space provided at the bottom of the Notice of Warrant on File card. 1. Members attempting service of a warrant will verify its status, prior to making

an arrest, by MDC, radio or telephone to MCSO warrants base. Verification can be made by members directly or through precinct/unit members.

c. After the warrant has been confirmed and the member feels confident the checked subject is the person named on the warrant, the requesting member will complete the arrest procedure and transport the arrested subject to the appropriate booking facility. 1. There is no need for the arresting member to physically serve the verified war-

rant on the arrested subject. The warrant will be served by MCSO staff during the booking process.

2. Unless exceptional circumstances dictate otherwise, members will not pick up warrants from MCSO.

3. Arresting members will not accept bail money or issue receipts to persons attempting to post bail. The arrested subject will be transported to MCDC for purposes of either posting bail or booking. Where specified on the warrant, a citation in lieu of custody may be issued.

4. If the county warrant stipulates that a citation-in-lieu-of-custody can be written, and there are no other bookable charges, the arresting member may issue a cita- tion-in-lieu-of-custody. The member must advise MCSO warrants base of the issuance of such as soon as possible.

d. Members will complete the Notice of Warrant on File Card by noting the served date, time, the name of the serving member and the DPSST number. It will be routed directly to MCSO Detention and Warrant Records by precinct/division members.

In those instances where a member determines a subject has moved to a new address within the city, a supervisor’s approval may be requested for travel to another precinct to continue the apprehension effort. The Notice of Warrant on File Card may be transferred to another precinct if the precinct’s computer produced Warrant Notice List is updated to reflect the transfer. In all cases, the cards must be returned within ten (10) days to the MCSO.

Source: Portland Police Bureau, Manual of Policy and Procedure (January 2007). Reprinted with permission

of the Portland Police Bureau.

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violence resulting from unnecessary surprise; and (3) it helps preserve people’s dignity and privacy. Of course, in certain situations, these reasons for a “knock-and-announce” requirement do not serve their intended purposes. In fact, the second reason can work opposite from what is intended: If the police are required to announce their presence for all manner of suspects, such an announcement could result in violence, rather than reduce the possibility for it. What, then, are the criteria for determining when a “knock and announce” is not required? It is useful to turn to Supreme Court precedent to answer this question.

The first case in which the Court addressed the constitutionality of the common-law knock-and-announce rule was Wilson v. Arkansas (514 U.S. 927 [1995]). In that case, Wilson had conducted several narcotics transactions with an informant over a period of several months. Based on the informant’s information about those transactions, police officers obtained an arrest warrant for Wilson as well as a search warrant for her home. When the officers arrived at Wilson’s residence, they identified themselves and declared that they had a warrant as they entered the home through an unlocked door. They did not knock and wait for an answer. In addition to finding evidence, the officers found Wilson in the bath- room, flushing marijuana down the toilet. At her trial, Wilson moved to suppress the evidence collected by the officers on the grounds that the search was invalid because the officers did not follow the common-law knock-and-announce rule before entering her home to serve the warrants. The Supreme Court ruled that the officers were required to follow the knock-and-announce rule. According to the Court, “An examination of the common law of search and seizure . . . leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announce their presence and authority prior to entering” (p. 931).

The Supreme Court later clarified its position in the case of Richards v. Wisconsin (520 U.S. 385 [1997]). There, the Court held that police can dispense with the knock- and-announce rule if they have reasonable suspicion that such a requirement “would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence” (p. 394). Basically, then, if the police have reasonable suspicion to believe that exigent circumstances are present, they do not necessarily have to knock on the door and announce their presence.

It is critical that when an announcement is required, police officers announce their authority and their intentions. This came to light in Miller v. United States (357 U.S. 301 [1958]). In that case, police officers arrived at Miller’s apartment at 3:45 a.m. without a war- rant but for the purpose of arresting Miller. One of the officers knocked on Miller’s door. When Miller asked who it was, the officers did nothing more than answer “Police.” Miller then opened the door slightly, as it was secured by a chain, and inquired as to the officers’ intentions. At that point, Miller attempted to close the door, but one of the officers reached through the opening and disconnected the chain. The officers then entered the apartment and arrested Miller. The Supreme Court ultimately reversed Miller’s conviction on the grounds that the officers never adequately announced their intention to arrest Miller.

DECISION-MAKING EXERCISE 4.5

Serving a Search Warrant in a Third-Party Residence

Sue Lyons leases an apartment and lives by herself. However, when she found out that her old boyfriend, Fred Taber, had been on the run from authorities for several months, she offered to let him stay at her apartment. She gave him a key so he could come and go at will. After eight weeks, during

which time Fred continued to live with Sue, the police were alerted as to his presence by a vigilant neighbor. Officers then entered Sue’s apartment without a warrant and arrested Fred. Will the arrest hold up? IS

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Hudson v. Michigan (547 U.S. 586 [2006])

In United States v. Banks (540 U.S. 31 [2003]), the Supreme Court considered how long the police should wait after announcing their presence and intentions. In that case, police served a warrant by first knocking on the door and then calling out “Police, search warrant.” They waited 15–20 seconds and, after getting no response, broke down the door with a battering ram. The Supreme Court upheld this action, arguing that the 15–20-second wait—coupled with the announcement—was sufficient. The Court did not, however, require that police always wait 15–20 seconds before entering.

Most recently, in Hudson v. Michigan (547 U.S. 586 [2006]), the Supreme Court decided that a violation of the knock-and-announce rule need not lead to exclusion of evidence. In that case, officers had a search warrant but failed to follow the knock- and-announce rule. Evidence was seized and a trial court judge ruled that it could not be used. A Michigan appeals court reversed and the Supreme Court affirmed. In a 5 to 4 decision, the Court held that evidence need not be excluded simply because the police violated the knock-and-announce rule. The Court offered the following in support of its decision:

The interests protected by the knock-and-announce rule include human life and limb (because an unannounced entry may provoke violence from a surprised resident), property (because citizens presumably would open the door upon an announcement, whereas a forcible entry may destroy it), and privacy and dignity of the sort that can be offended by a sudden entrance. But the rule has never protected one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests violated here have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable. (p. 585)

PROPERTY DAMAGE In Sabbath v. United States (391 U.S. 585 [1968]), the Supreme Court focused on the extent to which police officers can break and enter for the purpose of serving a warrant. In particular, the Court focused on the part of 18 U.S.C. Section 3109 that permits officers to “break open an outer door or window.” In Sabbath, police officers enlisted the help of a man named Jones, whom they had caught trying to smuggle drugs into the country, to apprehend Sabbath, the man who was to receive the shipment of drugs. Jones agreed to deliver the drugs to Sabbath while the police looked on. After Jones entered the apartment, the officers knocked on the door. Not hearing a response, the officers opened the unlocked door, entered the apartment with guns drawn, and arrested Sabbath. The court of appeals affirmed Sabbath’s conviction on the grounds that because the officers did not enter by force, the knock-and-announce rule of Section 3109 was not triggered.

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DECISION-MAKING EXERCISE 4.6

A Properly Served Arrest Warrant?

DEA agents and county police officers executed a search war- rant at a drug dealer’s house. In executing the warrant, the agents and officers gathered on the back porch of the house, knocked on the back door, yelled “Police, arrest warrant!” sev- eral times, and then broke down the door. During the search that followed, the officers seized a fully loaded revolver,

150 vials of cocaine, and cash in excess of $27,000. Did this action comport with the federal knock-and-announce rule enunciated in 18 U.S.C. Section 3109, which states that officers “may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance”?

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The Supreme Court disagreed with this reasoning, however, and reversed Sabbath’s conviction. According to the Court, “An unannounced intrusion into a dwelling—what Section 3109 basically proscribes—is no less an unannounced intrusion whether officers break down a door, force open a chain lock on a partially open door, open a locked door by use of a passkey, or, as here, open a closed but unlocked door” (p. 590). This case seems to suggest that whether physical damage inflicted to the premises is immaterial. Instead, what is important is merely that officers knock and announce their presence.

In cases in which physical damage to the premises is significant, even excessive, the Fourteenth Amendment enters in. As this chapter indicates, the service of arrests war- rants (and, by extension, search warrants) is governed by the Fourth Amendment. However, some attempts to seize people are governed by the Fourteenth Amendment’s due process clause. This was the unanimous holding in County of Sacramento v. Lewis (523 U.S. 833 [1998]). In that case, a police officer ran over the passenger on a motorcycle, killing her, while pursuing the driver. This was another case that arrived at the Supreme Court by way of a civil lawsuit.

The Court held that since a stop had not occurred (see the discussion of California v. Hodari D. in the previous chapter), the Fourth Amendment was not implicated. Instead, the Court held that the Fourteenth Amendment’s due process clause was relevant because it protects citizens from arbitrary government action. The Court went on to note that had the police conduct in Lewis “shocked the conscience,” then the police would have been liable. The Court observed that “[w]hile prudence would have repressed the [officer’s] reaction, the officer’s instinct was to do his job as a law enforce- ment officer, not to induce [the driver of the motorcycle’s] lawlessness, or to terrorize, cause harm, or kill” (p. 855).

Applying Lewis to the service of warrants, complaints about excessively destructive police conduct during the service of warrants are also governed by the Fourteenth Amendment. If the police’s conduct shocks the conscience, then they may be liable under the due process clause. But there is no easy way to define what conduct shocks the conscience. At least one case has suggested that when police officers show “deliberate or reckless indifference,” their conduct can be seen as conscience shocking (see Estelle v. Gamble, 429 U.S. 97 [1976]).

PERMISSIBLE DEGREE OF FORCE It is appropriate at this juncture to consider what level of force is permitted against people who are the targets of arrest warrants. Almost every state has a law or regulation concerning police use of force. The American Law Institute adopted just one such regulation, which resembles many others in place around the United States. Section 120.7 states that a police officer “may use such force as is reasonably necessary to effect the arrest, to enter premises to effect the arrest, or to prevent the escape from custody of an arrested person.” Further, deadly force is authorized when the crime in question is a felony and when such force “creates no substantial risk to innocent persons,” and the officer reasonably believes that there is a substantial risk that the fleeing felon will inflict harm on other people or police officers.

In Tennessee v. Garner (471 U.S. 1 [1985])—which involved the shooting death of a young, unarmed, fleeing felon—the Supreme Court adopted a rule similar to the American Law Institute’s formulation. The result was the leading Supreme Court precedent concerning the use of deadly force to apprehend fleeing felons. The Garner decision declared unconstitutional a Tennessee statute that authorized police officers who give notice of the intent to arrest to “use all the necessary means to effect the arrest” if the suspect flees or resists.

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Graham v. Connor 490 U.S. 386 [1989])

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The Court ruled that deadly force may be used when (1) it is necessary to prevent the suspect’s escape and (2) the officer has probable cause to believe the suspect poses a serious threat of death or causes serious physical injury to other people or police officers. One would think that the Supreme Court would be unanimous in a decision such as this, but three justices dissented, noting that the statute struck down by the majority “assist[s] the police in apprehending suspected perpetrators of serious crimes and provide[s] notice that a lawful police order to stop and submit to arrest may not be ignored with impunity” (p. 28).

Four years after Garner, the Supreme Court decided the landmark case of Graham v. Connor 490 U.S. 386 [1989]), which set the standard for nondeadly force. The Court declared emphatically that all claims involving allegations of excessive force against police officers must be analyzed under the Fourth Amendment’s reasonableness requirement. Further, the Court adopted a test of objective reasonableness to decide when excessive force is used. This requires focusing on what a reasonable police officer would do “without regard to [the officer’s] underlying intent or motivation.” In deter- mining what a reasonable police officer would do, the Court looked to three factors: (1) the severity of the crime; (2) whether the suspect posed a threat; and (3) whether the suspect was resisting and/or attempting to flee the scene. Courts must, in focusing on these three factors, allow “for the fact that police officers are often forced to make split-second judgments—about the amount of force that is necessary in a particular situation” (p. 386). Generally, then, if the crime in question is a serious one and the suspect is dangerous and resists arrest, then he or she will have difficulty succeeding with an excessive force claim.

Incidentally, both the Garner and Graham decisions resulted from Section 1983 lawsuits (see Chapter 2). Garner’s surviving family members and Graham himself both sued on the grounds that their constitutional rights were violated. Whereas many of the cases examined in this book focus on the evidence of crimes (e.g., weapons, drugs, confessions), Garner and Graham do not. How evidence was obtained was not at issue because there was none. Thus, the only remedy available to Garner’s family and Graham was civil litigation.

Garner and Graham both are necessarily general. States, cities, and counties around the country have adopted more restrictive guidelines for their officers concerning the use of force. To illustrate, the use of force policy from the San Bernardino, California, Police Department is reprinted in Figure 4.6.

ARRESTING THE WRONG PERSON On occasion, the police have a warrant to arrest someone but end up arresting the wrong person. The most obvious consequence of ar- resting the wrong person is that he or she must be let go (and will possibly file a law- suit). What the courts have focused on, though, is the admissibility of evidence resulting from a wrongful arrest. An example of such a situation would be one in which the

DECISION-MAKING EXERCISE 4.7

Deadly Force beyond Present Dangerousness

Garner seems to be concerned with present dangerousness. That is, police officers contemplating the use of deadly force have to consider, among other factors, how dangerous the suspect is before resorting to deadly force. But what if the

suspect committed the crime days or even months earlier? Can the police use deadly force to apprehend, say, an un- armed, fleeing individual who is the suspect in a weeks-old robbery?

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FIGURE 4.6 Use of Force Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #35 PROCEDURE #1

USE OF FORCE Revised 12-22-04

PURPOSE

To provide guidelines and parameters for police personnel concerning their use of force to accomplish their lawful duties and objectives.

POLICY

Police personnel have the legal authority to use the appropriate amount of force to protect themselves and the public from assaultive criminal behavior. However, the amount of force used must be both necessary and reasonable. Personnel shall use only that amount of force that reasonably appears necessary based upon articulable facts and the totality of circumstances known to the officer at the time of the event. Personnel should choose the appropriate force response to overcome active resistance or aggressive behavior. Therefore, personnel should be reasonable in their actions and demonstrate common sense when employing force.

The primary objective in the application of force is to ensure control of resistant or combative suspect(s) with the minimal amount of force necessary. No specific guidelines or policies can apply to all situations; therefore, personnel should constantly evaluate all use of force applications or options. The use of force will either escalate or de-escalate based upon the totality of circumstances during the course of an arrest or detention.

This policy will also include the use of force on combative subject(s) who do not rise to the level of being criminal suspects, such as W&I 5150.

The scale of force options in order of increasing severity are: verbal persuasion, compliance control techniques, intermediate force (chemical agents, lateral vascular neck restraint, or electronic disabling devices), and impact weapons. It is not necessary for personnel to exercise each option before escalating to the next level of force but flexibility is essential to maintain control during the dynamics of a physical confrontation. When choosing a particular force option, these factors should be taken into consideration:

1. The severity of the crime(s) involved or subjected. 2. The conduct/behavior of the suspect(s). 3. Whether the suspect(s) poses an immediate threat to the officer(s) or others. 4. Whether the suspect(s) has, used, or displayed a weapon. 5. The proximity of weapons. 6. Officer/suspect factors (age, physical size, relative strength, skill level, injury/

exhaustion, number of officer(s) versus number of suspect(s)). 7. Influence of drugs or alcohol. 8. Potential for injury to bystanders. 9. Availability of other options.

10. Other exigent circumstances.

PROCEDURE

Personnel shall only possess that equipment authorized or issued by the department. Only those defensive tactics or arrest control techniques authorized by or instructed by department personnel or other authorized persons are permitted excluding exigent

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Chapter 4 • Searches and Arrests with Warrants 127

circumstances. The level of force utilized should be that level which would quickly, safely, and humanely bring resisting subject under physical control. Personnel should employ escalating scale of force options in order of increasing severity to overcome the suspect(s) resistance.

1. Scale of Force

A. Persuasion The presence of a confident uniformed police officer displaying professional demeanor coupled with good verbal communication will generally convince a resistant subject to submit to your authority without the necessity of an escala- tion in force. Good verbalization may be advising, admonishing, warning, or persuading a subject to submit to your authority without the use of profanity or derogatory language. Officers should use their verbal techniques to de-escalate confrontations.

B. Compliance Control Techniques Compliance techniques consist of the physical application of force in the form of joint manipulations, blocks, pain compliance, and takedowns. These empty handed techniques should be coupled with a police officer’s verbal commands.

C. Intermediate Force 1. Chemical Agents

Police personnel may use chemical agents as an intermediate level of force for controlling or subduing combative persons. Chemical agents are defensive control weapons used to control or subdue subjects who are physically resisting arrest. Chemical agents should not be used indiscriminately and shall not be used against non-combative persons. It should not be used against a subject who is under restraint unless that subject is physically assaulting officers or others.

2. Lateral Vascular Neck Restraint The lateral vascular neck restraint (LVNR) is a means of subduing physically combative persons. This technique is a method which permits personnel to apprehend violent subjects who cannot be controlled or restrained with compliance or control holds.

3. Taser The electronic disabling device (taser) is a device, which may be used to subdue physically combative person/s in violent or potentially violent situations lessening the injury to the subject/s or officers involved. The taser may be used if other apprehension methods or restraints have failed or are deemed impractical and there is a reasonable expectation that it would be hazardous for personnel to approach and physically contact the subject/s.

D. Impact Weapons Impact weapons are methods of subduing physically combative persons or immediately impeding the threatening actions of a violently resistant subject with physical strikes to the subject’s body. These physical strikes shall be directed to those areas which are easily accessible, effective for quickly subduing the subject/s, and unlikely to cause serious injury. Other self defense techniques, kicks or arm strikes, can be used if the officer’s baton is unavail- able. Other authorized police equipment may be used as an impact weapon in exigent circumstances.

Figure 4.6 continued

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2. Reporting the Use of Force

Any physical use of force by personnel of this department shall be documented in an appropriate report depending upon the nature of the incident. When a use of force greater than a compliance control technique occurs, personnel shall promptly make an oral report to the watch commander or a supervisor. If the application of any force including a compliance control hold (See Procedure, Section 1, subsection B for definition) has caused physical injury or complaint of pain, personnel shall make their oral report immediately. Personnel shall document the name of the notified supervisor in their report. Any injury suffered by a suspect in our custody, whether caused by an officer or other person (including self-inflicted wounds) shall be imme- diately reported to a supervisor. Medical assistance shall be obtained for suspects who have been rendered unconscious, sustained injury, or complain of pain. Any supervisor notified of a use of force including compliance control holds that result in a complaint of pain requiring examination by a medical provider or obvious physical injury, shall complete a department approved Use of Force form. The documentation of suspect’s injuries, or claimed injuries, is a valuable part of the use of force process for two reasons: 1) documentation of visible injuries and, 2) prevention of false or inflated allegations of injuries that did not occur during police contact. The reporting supervisor shall ensure photographs are taken of the specific area of the body on which force was used, whether or not the suspect initially claims any injuries. When a suspect is treated at a hospital after the use of force, the reporting supervisor shall document the name of the treating medical provider along with medical provider’s brief statement (when available) as to the extent of the injuries. If a suspect is hospitalized or receives a serious injury due to a use of force incident, the watch commander shall notify the officer’s division commander. If the officer using force is a supervisor, he/she shall promptly make an oral report to the watch commander who will designate another supervisor to respond to the scene and complete the use of force report. The involved super- visor will write a follow up to the crime report describing the circumstances and the force used. The reporting supervisor shall complete a Use of Force report. The completed Use of Force report along with a copy of the corresponding police report will be forwarded to the appropriate district or unit manager for review. The supervisor will request that the photographs be developed and forwarded to the district/unit manager. The district/unit manager will complete his/her review of the facts. If the manager determines there is a need for a more in-depth assessment, he/she will prepare a staff report before forwarding to the division commander.

3. Report Filing

Use of Force reports shall be issued a “UF” number. After final review, Use of Force reports shall be kept in a secure file located in the Internal Affairs Office. Use of Force reports in need of further review will be forwarded to the Assistant Chief of Police for further action. Any use of force report that is referred by the Assistant Chief of Police to Internal Affairs for further review or investigation, will be provided to the officer through the administrative investigation process.

Source: Chapter 35, Procedure I, “Use of Force,” from Standard Operating Procedure, San Bernardino,

California, Police Department (rev. December 22, 2004). Reprinted with permission.

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Chapter 4 • Searches and Arrests with Warrants 129

police serve an arrest warrant at the wrong house and, during the course of arresting the wrong person, discover evidence of another crime. To what extent would such ev- idence be admissible? It depends on the reasonableness of the police action.

In Hill v. California (401 U.S. 797 [1971]), the Supreme Court focused on an arrest of the wrong person. In that case, the police arrived at Hill’s apartment to arrest him, but Miller answered the door. Since Miller fit Hill’s description, the police arrested Miller. Miller even provided identification to prove that he was not Hill, but the Court stated that “aliases and false identifications are not uncommon” (p. 803). A pistol and ammunition clip were in plain view. These were admitted into evidence, and the Supreme Court focused on their admissibility. The Court ruled that the police could have reasonably believed that Miller was Hill. Furthermore, the Court pointed out that “sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers’ mistake was understandable and the arrest a reasonable response to the situation facing them at the time” (p. 803).

SEARCHES WITH WARRANTS

Searches with warrants are subjected to many of the same restrictions that arrests with warrants are. However, because the purpose of obtaining a search warrant is to search for something, as opposed to seizing a person, the courts have placed significant restrictions on what the police can do when searching for evidence with warrants. Just because a warrant is obtained does not mean that the police can look anywhere and take unlimited time to search for the item(s) named in the warrant.

Executing a Search Warrant

The knock-and-announce rules discussed earlier carry over to the service of search war- rants. As indicated before, the police do not have to announce their presence if they have reasonable suspicion that exigent circumstances are present. Likewise, even if police do not “knock and announce,” evidence seized cannot be excluded per Hudson v. Michigan.

Use of force is rarely an issue that arises during the service of a search warrant because, strictly speaking, a search warrant authorizes the police to look for evidence. If a person gets in the way during the service of a search warrant, however, he or she may be arrested and force may be applied, if need be (i.e., subject to the restrictions discussed earlier).

If the police mistakenly search the wrong residence, the search will not automati- cally be declared invalid. As pointed out earlier, as long as the mistake is a reasonable one, any evidence seized during a search of the wrong residence will be admissible in a criminal trial. The key, however, is that the mistake must be an objectively reasonable one, gauged from the standpoint of a reasonable officer.

Four other issues are relevant to the service of a search warrant. These do not necessarily apply in the case of arrest warrants. They are: (1) time restrictions, both for when the warrant can be served and for how long the police can look for evidence; (2) the scope and manner of the search; (3) the procedure after the service of the search warrant; and (4) the presence of the media during the service of a search warrant. To illustrate the complexity inherent in search warrant procedure, the Portland (Oregon) Police Bureau’s search warrant policy is reprinted in Figure 4.7.

It is important to note that the police can sometimes request a search warrant with special instructions, which can include night service, no-knock authorization,

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FIGURE 4.7 Search Warrant Policy (Portland, OR, Police Bureau)

652.00 SEARCH WARRANTS

POLICY (652.00)

A search warrant should be obtained for all searches whenever there is time to do so and when there is any doubt about the necessity of obtaining a warrant.

PROCEDURE (652.00)

Any magistrate authorized to issue a warrant of arrest may issue a search warrant for:

a. Evidence of, or information concerning, the commission of a criminal offense. b. Property that constitutes contraband or items otherwise criminally possessed. c. Fruits of a crime (see ORS 133.535). d. Property that has been used, or is possessed for the purpose of being used, to

commit or conceal the commission of an offense. e. A person for whose arrest there is probable cause or who is unlawfully held in

concealment.

Search Warrant Issuance (652.00)

a. Application for a search warrant may be made by a district attorney or by any police officer. Search warrants and affidavits will normally be written by the member requesting the warrant. Warrant preparation will be coordinated with the appropriate investigative unit.

b. Search warrants are only issued upon a finding of probable cause to believe that an offense has or will be committed. The probable cause is based upon the mem- ber’s personal knowledge and/or hearsay information from another member, a named citizen or undisclosed informant. The probable cause is relayed to the magistrate through use of an affidavit. The affidavit should: 1. Contain a clear and distinct description of the place(s) to be searched and the

item(s) to be seized. 2. Provide facts and circumstances which provide probable cause for the search.

This includes: a) Information justifying the search; and b) Information leading to the belief that the object(s) of the search are in the

places or the possession of the subject(s) to be searched. c. Before issuing the warrant, the magistrate will need to be satisfied that probable

cause exists. The magistrate may examine the affiant or any witnesses under oath. d. Prior to the issuance of a search warrant, a magistrate may request that a meeting be

arranged at a time and place convenient for all parties involved, so the magistrate can interview any informant(s) contributing information towards the probable cause.

e. When hearsay information of an undisclosed confidential informant is relied upon to establish probable cause, that information must be independently corroborated (e.g., information demonstrating past reliability of the informant or by personal observation and corroboration).

f. An ongoing chronological record will be maintained of each informant’s activities and reliability by those divisions issuing evidence/informant funds. This file is to be reviewed by a supervisor prior to requesting a search warrant based on an informant’s reliability. Members will comply with DIRs 660.00 and 660.32.

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Chapter 4 • Searches and Arrests with Warrants 131

Search Warrant Checklist (652.00)

A search warrant checklist has been adopted by the Bureau, the Multnomah County District Attorney’s Office and Multnomah County court magistrates.

This checklist is available on the Bureau’s Intranet. Included on the checklist is a section indicating the investigator has conducted a check through Oregon State Intelligence Network (OSIN) to ensure that the warrant address is not currently the subject of an investigation by another agency and/or division.

The check is mandatory, and will be done prior to the issuance of any search war- rant. This form will be used for all Multnomah County search warrants obtained by the Bureau. Members should follow warrant application and return procedures for other counties as instructed by local magistrates.

A supervisor should review the probable cause, informant reliability, and the search warrant affidavit prior to its submission to the DA’s office. A deputy district attorney (DDA), from the appropriate county, will review every search warrant affidavit in person or by telephone.

A copy of the search warrant and the original affidavit will be left with the issuing magistrate. Search warrants will be served as soon as possible. Extended delay of service is to be avoided.

Threat Assessment and Planning (652.00)

All search warrant executions involving a potential threat to members or citizens require a Planned Operations Risk Assessment form be completed prior to execution. This form is available on the Bureau’s Intranet.

Examples of a threat might include, but not be limited to, violent suspects, animals, obstacles causing a delay to securing the search location, or even a lack of information about the location to be searched.

The supervisor responsible for the search warrant execution is responsible for the proper completion of the risk assessment form and any other necessary planning to ensure the safe and effective service of the warrant. The supervisor will ensure that the SERT commander, or designee, will be consulted, as required by the completed Planned Operations Risk Assessment form. This will assist the evaluation for need of SERT and/or HNT in the execution of the warrant.

If SERT/HNT are needed or requested, the SERT commander, or designee, will coordinate with HNT and the originating division/unit commander or designee, to ensure all tactical considerations have been discussed. The original completed risk assessment form, if not forwarded to SERT as a request for their services, will be retained in the investigator’s case file.

Execution of the Warrant (652.00)

a. Only a police officer may serve a search warrant. Generally, execution of a search warrant is restricted to between 0700 and 2200 hours unless it is otherwise endorsed on the warrant by the issuing magistrate.

b. A warrant is generally valid for five days after the date of its issuance. If the war- rant is not executed within this period, it is void. A new affidavit must be filed and new search warrant issued. The issuing magistrate may, however, authorize execution of the warrant for up to ten days after its issuance. This authorization must be specified on the face of the warrant. Before entering any premises, the executing member will knock and give appropriate notice of identity, authority and purpose to the person to be searched or to the person in apparent control of the premises to be searched. If the member is not admitted after such notification,

Figure 4.7 continued

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132 Part 2 • Search and Seizure

force may be used to enter the premises. In emergency situations, a no-knock entry may be performed (e.g., where members or others are at risk of bodily harm or where evidence may be destroyed). If such entry occurs, the circumstances leading to the entry will be clearly articulated in the incident report form. If it is determined that no one is at the residence, members have the authority to forcibly enter (see DIR 631.60). Before undertaking any search or seizure pursuant to the warrant, the executing member will: 1. Read and give a copy of the warrant (not the affidavit) to the person to be

searched, or to the person in apparent control of the premises to be searched. 2. Affix a copy of the warrant to the premises if the premises are unoccupied, or

there is no one in apparent control. c. In the course of executing a search warrant, the member may take reasonable

precautions to ensure that property will not be removed while the search is being conducted and to prevent interference with the search. Members have the same power and authority in all respects to break open any door or window and to use all necessary and proper means to overcome any forcible resistance as they do in executing or serving a warrant of arrest. In securing the premises to be searched, the member may seek out all persons on the premises and bring them to a central location for observation during the search.

d. Members of the media will not be allowed to enter private property without the consent of the property owner or individual in charge of the involved property.

Limitations of Warrants (652.00)

a. The scope of searches pursuant to search warrants is limited to the premises specified in the warrant and only for those items specified in the warrant to be seized. 1. The search must be terminated once all items specified in the warrant are

discovered. 2. If during execution of a warrant, there is inadvertent discovery of evidence not

specified in the warrant (even when the evidence is of an unrelated crime), it may be seized under the plain view exception.

3. Unless the warrant(s) authorize the search of a named person(s), a search war- rant for a residence or other premises does not permit a search of all the persons present during the time of the search. if there is probable cause to believe that persons on the premises are carrying or concealing items which reasonably could be the objects of the search warrant, those persons may be detained and searched to the extent necessary to determine whether they are concealing items covered by the warrant.

b. A member may remain on the premises in a search warrant only during the time reasonably necessary to conduct the search for the property described in the warrant.

Post Execution Responsibilities (652.00)

Upon execution of the search warrant, the member will: a. Leave a copy of the warrant and property receipt(s) specifying, in detail, the prop-

erty taken. This copy will be left with the person from whom the property was taken, or in whose possession the property is found. In the absence of any person, the copy of the warrant/receipt(s) will be left in the place where the property was found.

b. Secure the location if the owner or other responsible party is unavailable.

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Chapter 4 • Searches and Arrests with Warrants 133

c. File all affidavits, search warrants and returns, regardless of any associated cases, with the Circuit Court issuing judge. Members will file the search warrant return and receipts as soon as reasonably possible, but no later than five days, after the execution or expiration of the warrant.

d. Following execution of a search warrant which involves the distribution or manu- facture of controlled substances, prostitution and/or gambling, members will complete a Drugs and Vice Division (DVD) Completed Activity Report and for- ward the form to DVD. The information may be used to take action against the property owner under the specified crime property ordinance.

Telephonic Search Warrant Guide (652.00)

a. Preparation: 1. Assemble notes, outline or handwritten affidavit (for dictation). 2. Type or hand write the search warrant. 3. Discuss with the DDA, if appropriate. 4. Locate the judge. 5. Discuss briefly with the judge to resolve any questions.

b. Turn on recorder; remember, what you told the judge before the recording starts does not count, so start over at the very beginning.

c. Preface phrase: 1. Affiant’s name. 2. Date and time. 3. Telephonic warrant. 4. Judge’s name and authority. 5. Note that this is a recording. 6. Example: This is Officer (Name) presenting a telephonic affidavit for a search

warrant on (Date) at (Time). This request is being made to Judge (Name), of the Circuit Court, Multnomah County, State of Oregon, and is being tape recorded for later transcription.

d. Affiant identification phrase: 1. Name. 2. Oath (Upon my oath, I (Name), do hereby depose and say . . . ). 3. Employer, assignment, length of service.

e. Factual information – body of affidavit; organize your dictation to cover all critical areas including: 1. Informant credibility and reliability. 2. Observations of informant. 3. Location of place to be searched, property to be seized, identity of resident. 4. Corroboration, if available. 5. Venue (judge must be from court where search is to be done).

f. Request permission to search (Standard Request for Warrant). g. Have judge administer oath. h. Read typed or handwritten search warrant to judge. Judge must hand write or

type original warrant. i. Obtain permission to search. j. Obtain permission to sign judge’s name to duplicate warrant.

k. Have judge declare that the judge is signing the original search warrant. l. Note time and date of authorization; end tape. Make sure the judge writes the

time and date on the original warrant.

Figure 4.7 continued

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134 Part 2 • Search and Seizure

and the like. An example of the face sheet for a special instructions warrant from the state of California is reprinted in Figure 4.8.

TIME CONSTRAINTS There are three means by which the courts impose time constraints on the police when it comes to the service of search warrants. First, the service of a search warrant should take place promptly after its issuance. Clearly, probable cause could dissipate if an excessive amount of time elapses between the time the warrant is issued and the time it is served. To avoid this potential problem, a warrant will sometimes specify that the search be conducted within a certain period of time.

A second time restriction that is occasionally imposed pertains to the time of day. Judges commonly restrict the service of warrants to the daytime hours or at least favor daytime service (see Gooding v. United States, 416 U.S. 430 [1974]). The Federal Rules of Criminal Procedure, for example, restrict the service of warrants to daytime hours, unless the issuing judge specifically authorizes execution at another time. Daytime hours, according to the Federal Rules, are between the hours of 6:00 a.m. and 10:00 p.m.

The third time restriction concerns how long the police can search for evidence. The general rule is that a search cannot last indefinitely. Once the item in the warrant has been discovered, the search must be terminated. If the police have difficulty finding the item or items named in the warrant, they can take as long as necessary to find them. If the police do not succeed in finding the evidence named in the warrant and then leave and come back later, they will be required to obtain another warrant. Steps should always be taken to avoid the appearance of arbitrariness, and people’s Fourth Amendment privacy interests should always be respected.

SCOPE AND MANNER OF THE SEARCH Two additional restrictions with regard to the service of a search warrant concern the scope and manner of the search. Scope refers to where the police can look for evidence. Manner refers to the physical steps the

Return of a Telephonic Search Warrant (652.00)

a. Search warrant: 1. Present to the issuing judge the duplicate warrant that was prepared and

signed by you within the date specified on the warrant (normally five days from the date of issue). Remember this should be the actual duplicate of the original warrant that the judge authorized you to sign over the phone, even if handwritten.

2. Make sure the judge has the original warrant that the judge prepared and signed.

3. Both should be filed with the court. Normally the judge will handle this. b. Tape and transcription:

1. Present both the tape and transcription to the judge at the same time and duplicate warrant is returned.

2. After the judge listens to the tape and reviews the transcription for accuracy, have the judge certify both the tape and the transcription.

3. Both the tape and the transcription should be filed with the court. Normally the judge will handle this.

Source: Portland Police Bureau, Manual of Policy and Procedure (January 2007). Reprinted with permission

of the Portland Police Bureau.

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SUPERIOR COURT OF CALIFORNIA County of

SEARCH WARRANT Special Instructions

THE PEOPLE OF THE STATE OF CALIFORNIA to: Warrant No. ___________

___________________

Any peace officer in ________________________ County The affidavit filed herewith by ___________________________________________, sworn to and subscribed before me, has established probable cause for this warrant which you are ordered to execute as follows:

Place(s) to be searched: Described in Exhibit 1A, attached hereto and incorporated by reference.

Property to be seized: Described in Exhibit 1B, attached hereto and incorporated by reference.

Disposition of property: All property seized pursuant to this search warrant shall be retained in the affiant’s custody pending further court order pursuant to Penal Code §§ 1528(a), 1536.

SPECIAL INSTRUCTIONS The Statement of Probable Cause, filed herewith, has demonstrated legal justification for the following special procedures which are authorized if checked:

Night Service: This warrant may be served at any hour of the day or night.

No Knock Authorization: Compliance with Penal Code § 1531 is excused unless a change in circumstances negates the need for non-compliance.

Special Master: The search shall be conducted by a Special Master pursuant to Penal Code §§ 1524(c)-(g). The Special Master shall be ________________________________________________________.

Sealing Order: The following documents shall be sealed and delivered into the custody of the Clerk of the Superior Court pending further court order: All documents filed herewith. Documents listed in Exhibit 2. Grounds for sealing: Informant protection (Evid. Code § 1041) Official information (Evid. Code § 1040)

Nondisclosure Order: The financial institution served with this warrant, including its employees and agents, shall not disclose any information regarding its content, existence, or execution pending further court order.

Blood draw: (Not for HIV testing per Penal Code § 1524.1): A blood sample shall be drawn from the person described in Exhibit 1A by trained medical personnel in accordance with accepted medical practices.

Anticipatory Warrant: Having determined that probable cause for this search will exist upon the occurrence of the triggering event(s) described in Exhibit 3, and that there is probable cause said triggering event(s) will occur, this warrant shall be executed promptly after said triggering event(s) occur. Exhibit 3 is attached hereto and incorporated by reference.

Covert Warrant: The property described in Exhibit 1B shall not be removed from the premises. An inventory shall be prepared showing the location of all such property discovered on the premises. Said property shall be photographed or videotaped to show its location when discovered. Compliance with the receipt requirements of Penal Code § 1535 is excused until ____________________________ unless an extension is granted by this court. [Initial compliance date must not be more than 7 days following execution of the warrant.] Within two days after executing this warrant, the following shall be filed with this court: (1) the inventory, and (2) the original or copy of all photographs and/or videotape recordings made during the execution of this warrant.

Additional instructions: Additional instructions pertaining to this search warrant are contained in Exhibit 4, attached hereto and incorporated by reference.

____________________________________ ___________________________________________ Date and time warrant issued Judge of the Superior Court

FIGURE 4.8 Example of a Special Instructions Warrant

Source: Reprinted with permission of the District Attorney’s Office of Alameda County, California. Available

online: http://le.alcoda.org/publications/files/sw_multi.pdf (accessed February 16, 2011).

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police can take to find the evidence in question, including breaking down doors, forcibly opening locked cabinets, and so on.

The scope of the search must be reasonable, based on the object of the search. In other words, the police are restricted in looking for evidence insofar as they can only look where the item could reasonably be found. For example, assume the evidence in question is a stolen diamond ring. Such an item is relatively small, so the police will be authorized to look almost anywhere for the ring. However, if the evidence in question is large in size—for example, a stolen big-screen television set—then the police cannot look in small places, where such an item could not possibly be found. The Supreme Court’s statement in Harris v. United States (331 U.S. 145 [1947]) provides further clarifi- cation: “[T]he same meticulous investigation which would be appropriate in a search for two small canceled checks could not be considered reasonable where agents are seeking a stolen automobile or an illegal still” (p. 152).

The police may also detain people as needed while serving a search warrant. According to the Court in Michigan v. Summers (452 U.S. 692 [1981]), “[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted” (p. 704). Although the police may detain people who are on the premises to be searched, they cannot search the people unless probable cause exists (Ybarra v. Illinois, 444 U.S. 85 [1979]). A frisk is permissible, though, as long as the police have a reasonable suspicion that there is a risk to officer safety. If a person does not live on the premises, does not house personal belongings there, and is not a threat, he or she will probably be allowed to leave.

As discussed in the section “Arrest with Warrants,” federal law authorizes the police to break open doors and containers if they are refused admittance (18 U.S.C. Section 3109). Still, there are restrictions. Basically, the manner of the search must be limited to what is reasonably necessary to find the evidence in question. The Supreme Court has stated that “[e]xcessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful and the fruits of the search not subject to suppression” (United States v. Ramirez, 523 U.S. 65 [1998], p. 71). Additionally, the occupant of the place searched can be detained—even in handcuffs—for the duration of the search (Muehler v. Mena, 544 U.S. 93 [2005]).

PROCEDURE AFTER SERVICE OF A SEARCH WARRANT After a search warrant has been served, the police are required to inventory the items that were seized. Usually the inventory is taken by the searching officer in the presence of whose property was searched. This procedure not only protects against claims of police theft but also helps assure the person whose premises were searched that his or her property has been accounted for. A copy of the inventory is given to the person whose property was searched, and if no one was on the premises during the time of the search, the list must be left at the scene in a prominent place. Also, the police typically have to complete some type of a search record form to be kept on file with the department. Interestingly, the police are not required to notify the property owner of the steps

DECISION-MAKING EXERCISE 4.8

Defining Daytime

On August 26, at approximately 7:30 p.m., the Sunny County Sheriff’s Department executed a search warrant on the premises of 5678 Cherry Lane. The defendants later argued that the search warrant and its execution were defective because the

warrant directed that it be executed during the daytime. In fact, the warrant was executed at approximately 7:30 p.m., and sun- set occurred at 6:43 p.m., according to the National Weather Service. Given this, was the warrant therefore defective?

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Chapter 4 • Searches and Arrests with Warrants 137

necessary for the return of the property or to remedy any perceived constitutional violation (see City of West Covina v. Perkins, 525 U.S. 234 [1999]).

MEDIA PRESENCE In Wilson v. Layne (526 U.S. 603 [1999]), the Supreme Court decided whether the police can bring members of the media along during the service of a arrest warrant. The facts of the case are as follows: Early in the morning on April 16, 1992, deputy U.S. marshals and Montgomery County police officers entered the suspected home of Dominic Wilson. They were joined by a Washington Post reporter and a photogra- pher as part of a marshals’ service ride-along policy. Dominic’s parents were asleep in bed when the officers arrived. They heard the officers enter the home and ran into the living room to investigate the disturbance. A verbal altercation ensued, and both the Wilsons were subdued. Dominic Wilson was never found. Even though the reporter observed what occurred and the photographer took pictures of what transpired, the story was never printed and the pictures were never published. The parents, Charles and Geraldine Wilson, nonetheless brought a Bivens action (the Section 1983 counterpart for lawsuits against federal officials) against the marshals, alleging the officers violated their Fourth Amendment rights by bringing the media into their home.

The case worked its way up through the courts and was ultimately heard by the Supreme Court, which decided that media presence during the service of arrest war- rants violates the Fourth Amendment, as long as the presence serves no “legitimate law enforcement objectives.” The Court declared that “it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant” (p. 614).

Chief Justice Rehnquist, writing for the majority, began by stating that the Fourth Amendment embodies the “centuries-old principle of respect for the privacy of the home” (p. 610). He went on to note that although the law enforcement officers were authorized to enter the Wilsons’ home, “it does not necessarily follow that they were entitled to bring a

DECISION-MAKING EXERCISE 4.9

Where Can Police Reasonably Look?

Sheriff’s deputies had a search warrant to look for a rare, stolen koala in the house of the local taxidermist. When serving the warrant, they looked through the kitchen cupboards, wherein they found small baggies of a white, powdery substance as

well as a scale. They seized the items and arrested the taxider- mist for drug possession. The koala was never found. May the seized items be admitted into evidence? What if the officers had been looking for a stolen circus elephant?

DECISION-MAKING EXERCISE 4.10

Detention of a Third Party during an Arrest

As officers arrived at a house to serve a search warrant, they encountered Larry McVee descending the front steps. The officers asked McVee to help them gain entry into the house. McVee replied that he did not have keys to the house but would ring someone over the intercom. When he did so, another occupant answered the door but refused to allow the officers into the house. The officers then forced the door open and detained McVee as well as eight

other people who were in the house. All nine people were frisked because the officers feared for their safety. One of the people had a gun on his person. The officers arrested that man, and in his later trial for weapons offenses, he moved to suppress the gun on the grounds that the officers did not have justification to detain him (or the other people in the house) during the execution of a search warrant. Will his motion be granted?

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newspaper reporter and photographer with them” (p. 611). The Court then considered whether the actions of both parties—the reporters and the police—were related to the objectives of the intrusion into the Wilsons’ home. It ruled that they were not. Since the reporters were in the Wilsons’ residence for their own purposes, they “were not present for any reason related to the justification for police entry into the home” (p. 611). However, if media presence does serve legitimate law enforcement objectives, then the Fourth Amendment will not be violated.

To many observers, the Court’s decision in Wilson v. Layne seemed to decide the fate of the so-called reality-based police television shows—and to an extent, it did. The police cannot take a camera crew with them when a arrest warrant is served. Media accompaniment is still permissible outside people’s homes, however. Figure 4.9 provides a summary of the restrictions on the service of arrest warrants. The last sections of this chapter focus on special circumstances that arise in the arrest-warrant context.

SPECIAL CIRCUMSTANCES

Added restrictions govern bodily intrusions. The same is true of tracking devices, recording instruments, and electronic surveillance in general. The following subsec- tions touch on the special circumstances in each of these areas.

Search Warrants and Bodily Intrusions

The Supreme Court has been especially restrictive with regard to intrusions into the human body. The most well-known case that serves as an example is Rochin v. California (342 U.S. 165 [1952]). In that case, the police had information that a man was selling narcotics. They entered his home and forced their way into his bedroom. When the police asked the man about two capsules that were lying on his bed, he put the capsules in his mouth. The officers could not successfully remove the drugs from the man’s mouth, so they took him to the hospital, where his stomach was pumped. Drugs were found and the man was convicted in California state court for possession of morphine. Rochin was decided in 1952, prior to when the exclusionary rule was applied to the states. As a result, the Court ruled that the way the police handled the man shocked the conscience, thereby violating his Fourteenth Amendment right to due process.

In another case, Winston v. Lee (470 U.S. 753 [1985]), the Supreme Court decided whether the government could require a bullet to be surgically removed from a suspected robber. The Court required not only that a warrant be obtained before allowing such an intrusion but also that the suspect’s safety and privacy interests should be weighed against society’s interest in capturing lawbreakers. The Court noted,

FIGURE 4.9 Summary of Search Warrant Restrictions

1. Time Constraints a. Search must be executed promptly after issuance b. Search must be conducted during daylight hours if possible c. Search must not last indefinitely

2. Scope and Manner a. Search must be based on object sought b. Search must avoid causing excessive and unnecessary property damage c. Cannot search guests or third parties if probable cause to do so is lacking

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A compelled surgical intrusion into an individual’s body for evidence . . . implicates expectations of privacy and security of such magnitude that the intrusion may be “unreasonable” even if likely to produce evidence of a crime. . . . The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure. In a given case, the question whether the community’s need for evidence outweighs the substantial privacy interest at stake is a delicate one admitting of few categorical answers. (pp. 759–760)

The Court did not expressly decide what the appropriate procedure would be before surgery would be permitted, but it did cite a lower court decision, United States v. Crowder (543 F.2d 312 [1977]), in which the D.C. Circuit Court of Appeals decided that before surgery would be permissible (even if a warrant were obtained), an adversarial hearing with appellate review must occur. Thus, under certain circumstances, it would appear that certain types of bodily intrusions require more than a warrant.

Given the importance of bodily intrusions vis-à-vis civil liberties, police departments should take special care for engaging in them. Accordingly, the San Bernardino, California, Police Department’s policy for strip and body cavity searches is reprinted in Figure 4.10.

FIGURE 4.10 Strip and Body Cavity Search Policy (San Bernardino, CA, Police Department)

STANDARD OPERATING PROCEDURE CHAPTER #29 PROCEDURE #1

STRIP and BODY CAVITY SEARCHES (Revised) 4-8-91

PURPOSE

A. To establish a policy governing strip and body cavity searches, and to protect arrested persons from unwarranted intrusions.

B. To conform to the requirements of Penal Code Section 4030.

DEFINITIONS

A. Strip Search – Means a search that requires a person to remove or arrange some or all of his/her clothing so as to permit a visual inspection of the underclothing, breasts, buttocks, or genitalia of that person.

B. Body Cavity – Means the stomach or rectal cavity of any person and the vagina of a female person.

C. Visual Body Cavity Search – The visual inspection of a body cavity. D. Physical Body Cavity Search – Mean physical intrusion into a body cavity for the

purpose of discovering any object concealed in that cavity.

PROCEDURES

A. When an arrestee is taken into custody, that person may be subjected to a pat down search, metal detector search, and thorough clothing search in order to discover and retrieve concealed weapons and/or contraband prior to being trans- ported to County Jail.

Figure 4.10 continued

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B. Before requesting authority for a strip search or body cavity search, an officer must determine there is a reasonable suspicion based on specific and articulable facts to believe an arrestee is concealing a weapon or contraband, and that a strip search or body cavity search will result in the discovery of the weapon or contraband. No strip search or visual body cavity search may be conducted on a misdemeanor or infraction arrestee, without the prior written authorization of the supervisor on duty. A copy of the written authorization shall remain with the case file and shall be made available upon request. The time, date, and place of the search, the name and sex of the person conducting the search, and a statement of the results of the search, including a list of any items removed from the person searched shall be recorded in the case file and made available upon request of the person search or his/her authorized representative. The authorization shall include specific and ar- ticulable facts and circumstances upon which the reasonable determination was made by the supervisor.

C. No arrestee shall be subjected to a physical body cavity search except under the authority of a search warrant issued by a magistrate specifically authorizing the physical body cavity search. A physical body cavity search shall be conducted under sanitary conditions, and only by a physician, nurse practitioner, registered nurse, licensed vocational nurse, or emergency medical technician licensed to practice in the State of California. Any physician engaged in providing health care to detainees or inmates of a facility may conduct the physical body cavity search. A copy of the warrant shall remain in the case file and shall be made available upon request of the person searched or his/her authorized representative. The time, date, and place of search, the name and sex of the person conducting the search, and a state- ment of the results of the search including a list of items removed from the person searched shall be recorded in the case file.

D. A person conducting a strip search or a visual body cavity search shall not touch the breasts, buttocks, or genitalia of the person being searched.

E. All persons conducting or present during a strip search or visual or physical body cavity search shall be of the same sex as the person being searched, except for physicians or licensed medical personnel.

F. All strip, visual, and physical body cavity searches shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search. A person is considered to be participating in the search if his/her offi- cial duties relative to search procedure require him/her to be present at the time the search is conducted.

G. No strip or body cavity search shall be conducted on persons not under arrest, without their consent, or a valid search warrant for that person and the rules herein apply to infraction or misdemeanor arrestees. Officers will also adhere to all procedures when dealing with felony arrestees, except that no prior written authorization of the supervisor is required.

H. Employees are reminded that willful violations of Penal Code Section 4030 relating to strip searches and body cavity searches by persons authorizing or conducting such searches are punishable as misdemeanors and civil actions as well punitive damages are available to a person improperly searched.

Source: Chapter 29, Procedure 1, “Use of Force,” from Standard Operating Procedure, San Bernardino,

California, Police Department (rev. December 22, 2004). Reprinted with permission.

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The body cavity discussion, in particular, deserves careful attention, as this type of search enjoys a high level of Fourth Amendment protection.

Tracking Devices, Video Recordings, and Detection Devices

One of the more common types of tracking devices, known as a beeper, emits a signal that can be tracked by law enforcement officials. Beepers have been around for some time and are relatively crude in terms of their technology. Far more sophisticated types of devices are available nowadays, some that employ GPS technology. These newer devices have attracted little attention by the courts, but beepers have. For example, in United States v. Knotts (460 U.S. 276 [1983]), federal agents placed a beeper in a container of chloroform in a store without a warrant but with the consent of the store’s owner. The container was later picked up, and the police tracked it to a cabin. The officers then obtained a warrant to search the cabin. The Supreme Court upheld their actions, even though they did not obtain a warrant in advance.

A key feature of Knotts was that the beeper led the police to the cabin, not inside it. When the police use beepers to track persons and items indoors, the story is different. In United States v. Karo (468 U.S. 705 [1984]), the police, using a beeper, tracked a suspect’s movements inside a residence. The beeper was placed inside a can of ether. The Court ruled that this action was a violation of the Fourth Amendment.

Video recordings are another method of conducting electronic surveillance. Whether using such devices requires a warrant depends on whether the recording is of a private or a public place. With regard to private places, video recordings are usually governed, according to certain courts anyway, by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, even though the act does not explicitly refer to video recorders. A key case in this area is United States v. Torres (751 F.2d 875 [7th Cir. 1984]). In it, the FBI obtained authorization from a judge to place cameras in so-called safehouses used by a Puerto Rican separatist group. The agents followed the guidelines set forth in Title III, and the Seventh Circuit Court of Appeals upheld their actions. Other courts, however, have held that Title III’s restrictive guidelines need not apply to video recordings. Rather, they have argued that the traditional Fourth Amendment approach should be used (see, e.g., United States v. Cuevas-Sanchez, 821 F.2d 248 [5th Cir. 1987]).

The foregoing does not apply to video cameras in public places. Several cities throughout America use networks of strategically located video cameras to look for crime. While this may smack of Orwellian society, to date, the use of such cameras has been entirely constitutional. In a similar vein, several cities throughout the United States are using so-called red-light cameras to capture motorists who run red lights. Similar cameras are used to catch speeders, as well. While civil libertarians groan at the increased use of such cameras, they remain an effective law enforcement tool and are not considered unconstitutional.

Finally, detection devices are another method of engaging in what amounts to electronic surveillance. One of these devices, the thermal imager (infrared heat sensor), was discussed in Chapter 3. The Supreme Court decided in Kyllo v. United States (533 U.S. 27 [2001]) that a thermal imager cannot be used to scan a private residence without a warrant. Other types of detection devices, such as gun detectors—which can actually help police determine when persons are armed—are being developed, and some are even being used. It will be interesting to see if and when these come to the attention of the Supreme Court, as they almost certainly will.

Electronic Surveillance

The term electronic surveillance includes a variety of methods for spying on the activ- ities of suspected criminals, including conversations as well as criminal actions.

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The methods used to spy on criminal suspects are quite diverse and include wiretap- ping, “bugging,” hacking into computer transmissions, tracking movements of persons and equipment, video surveillance, and seeing through opaque surfaces using devices such as thermal imagers and “gun detectors.”

Electronic surveillance law is exceedingly complex and rapidly changing, so a thorough introduction is beyond the scope of this text. However, by focusing some attention on legislative developments over time, sufficient familiarity can be developed with the general contours of the law in this important area of criminal procedure. The following subsections begin by looking at early legislative requirements in the area of electronic surveillance, then move into Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (and its 1986 amendments), and finally consider the PATRIOT Act, which was passed following the September 11 terrorist attacks.

Most of the law in this area, especially Title III and the PATRIOT Act, restricts government interception of private communications. Thus, the bulk of the discussion that follows concerns the use of wiretaps and similar strategies to intercept people’s communications. Other types of electronic surveillance—namely, the use of tracking devices, video recorders, and detection devices—are discussed in a separate subsection, as these types of activities are governed mostly by Supreme Court decisions.

Prior to the Supreme Court’s decision in Katz v. United States (389 U.S. 347 [1967]), the constitutionality of searches and seizures was governed by the so-called trespass doctrine (see Chapter 3). The leading case was Olmstead v. United States (277 U.S. 438 [1928]), in which the Court held that a warrantless wiretap was constitutional because it did not “trespass” on the defendant’s property. Then, in Goldman v. United States (316 U.S. 129 [1942]), the Court upheld the use of a “detectaphone” placed against an office wall because it did not amount to a trespass. But in Katz v. United States, the Supreme Court abandoned the trespass doctrine, holding that the appropriate inquiry is whether the law enforcement action in question infringed on a person’s reasonable expectation of privacy.

Following Katz, the Supreme Court decided Berger v. New York (388 U.S. 41 [1967]), in which it decided on the constitutionality of a statute that permitted eavesdropping orders to be issued by magistrates if the police showed reasonable grounds that evidence of a crime would be discovered. The Court declared the statute unconstitutional, holding that a warrant supported by probable cause is necessary to secure permission to intercept people’s communications. Importantly, though, Katz and Berger do not apply to the interception of communications that can be considered consensual, such as when the government plants a listening device on an informant (see On Lee v. United States, 343 U.S. 747 [1952]; Lopez v. United States, 373 U.S. 427 [1963]).

In addition to being governed by the Supreme Court’s decisions in Olmstead, Katz, and Berger, electronic surveillance was also subject to the restrictions in Section 605 of the Federal Communications Act of 1934. In it, Congress provided that “no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, purport, effect or meaning of such intercepted communications to any person.” However, if the person whose conver- sation was intercepted consented to the conversation, any resulting evidence would be admissible (see Rathbun v. United States, 355 U.S. 107 [1957]). In summary, Supreme Court decisions and Section 605 restricted the surveillance of conversations in which the suspect did not consent to the conversation. Importantly, the suspect did not have to consent to the use of a recording device, only the conversation during which it was used. IS

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Electronic surveillance law is rapidly changing. There are several “hoops” authorities have to jump through in order to conduct electronic surveillance of the sort depicted in this picture.

TITLE III AND THE ELECTRONIC COMMUNICATIONS PRIVACY ACT In 1968, Congress passed Title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. Sections 2510–20). Then, in 1986, Congress amended the act by passing the Electronic Communications Privacy Act (ECPA) (Pub. L. No. 99-508 [1986]). Both acts govern law enforcement electronic surveillance activities at both the federal and state levels. Both acts are of particular importance in the present context because they preempt state laws addressing electronic surveillance. That is, for electronic surveillance to conform to constitutional requirements, it must not only abide by state law but also by the 1968 and 1986 acts.

Title III restricts the interception of “wire, oral or electronic communications,” unless such interception is authorized by statute (see the act for definitions of each). The 1986 amendments to the act added electronic communications to the list of protected activities. The amendments also covered the electronic storage and processing of information. In short, both acts protect virtually all wire, oral, and electronic communications among private parties. That is to say, for the government to intercept such information, it must obtain a valid search warrant.

In contrast to communications between private parties, communications among government employees and communications between private parties and the general public are not protected. For example, if an individual posts a message to the World Wide Web, it will not be protected in any way. Also, as dis- cussed earlier, communications that are consensual in nature—such as between a suspect and a government informant—do not come under the protection of Title III or its amendments.

The requirements for obtaining a Title III warrant go beyond those for obtaining a typical warrant, as discussed earlier in this chapter. There are seven of them:

• The application for a Title III warrant must identify both the officer filing and the officer approving the application.

• The warrant application must contain “a full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued.”

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• The application should contain “a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.”

• The application must contain a “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”

• The application must contain “a statement of the period of time for which the interception is required to be maintained,” including, if deemed necessary, “a particular description of facts establishing probable cause to believe that addi- tional communications of the same type will occur” after “the described type of communication has been first obtained.”

• The warrant application must contain “a full and complete statement of the facts concerning all previous applications . . . involving any of the same persons, facilities, or places specified in the application, and the action taken by the judge on each such application.”

• The warrant application must contain “a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.”

When preparing to serve a Title III warrant, authorities can covertly enter the place where the interception is to take place (see Dalia v. United States, 441 U.S. 238 [1979]). The entry must be reasonable and not result in excessive property damage. Indeed, too much, if any, property damage would alert that suspect that an investigation is taking place. Also, if the circumstances of the interception change during the course of the investigation, the Title III warrant will need to be amended. For example, if when listening to conversations, the police are alerted to additional criminal conduct that they would like to hear about, they must seek an amendment to the original warrant.

If all Title III requirements are not met, the remedy is suppression. That is, the exclusionary rule will apply. In fact, Title III has its own set of exclusionary rules, but they are more or less the same as the rule described in Chapter 2. For example, if a Title III warrant fails to describe with particularity the communications to be intercepted, and assuming this is called to the attention of the court, any evidence resulting from the interception will be inadmissible in court. However, if authorities make a reason- able mistake, then the “good faith” exception announced in Leon (468 U.S. 897 [1984]) will apply. Also, only those persons who have standing (i.e., who can show that the interception infringed on a reasonable expectation of privacy) can succeed in having intercepted communications excluded from trial (see Alderman v. United States, 394 U.S. 165 [1969]). Finally, in United States v. Giordano (416 U.S. 505 [1974]), the Court held that suppression of evidence is only required when the part of the act that has been violated “was intended to play a central role in the statutory scheme.” In other words, trivial violations of the act will not likely result in suppression. For example, if fewer than all of the law enforcement officers involved in the investigation are identified in the warrant, then evidence will not be suppressed (see United States v. Donovan, 429 U.S. 413 [1977]).

THE FOREIGN INTELLIGENCE SURVEILLANCE ACT The Foreign Intelligence Surveillance Act (FISA), passed in 1978, regulates electronic surveillance as it pertains to foreign intelligence gathering. In contrast, Title III and ECPA are mostly for domestic law enforcement purposes. FISA regulates a number of specific activities, including physical searches for intelligence-gathering purposes, the use of pen registers and so-called “trap- and-trace” devices, access to business records, and, of course, electronic surveillance. FISA

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Summary

1. OUTLINE THE COMPONENTS OF SEARCH AND ARREST WARRANTS.

A warrant has three required components: (1) a neu- tral and detached magistrate; (2) a showing of proba- ble cause; and (3) particularity. A prosecutor or law enforcement official cannot be considered neu- tral and detached. Neither can a judge who is paid for issuing warrants. Probable cause was defined in Chapter 3, but in this chapter, it was pointed out that the showing of probable cause differs, depending on the type of warrant. An arrest warrant requires show- ing probable cause that the person to be arrested committed the crime. A search warrant requires show- ing probable cause that the evidence to be seized was connected with a crime and that it will be found in the place to be searched. Particularity in an arrest warrant is satisfied when the suspect’s name or a detailed description of the person is given. Particularity in a search warrant is satisfied when the place to be searched and the item or items to be seized are described in detail.

2. DESCRIBE HOW SEARCH AND ARREST WARRANTS ARE EXECUTED.

Arrest warrants are required in two situations: (1) arrests in the home and (2) arrests in third-party homes. Arrests in public do not require warrants. Similarly, arrests in the presence of exigent circumstances do not require warrants, regardless of location. The police are required to announce their presence during the execution of a search warrant unless exigent circum- stances are present.

The police will generally not be liable for property damage during the service of a warrant; however, due process can be violated if the property damage is exces- sive. Deadly force can be used to effect an arrest, but only when the suspect seeks to escape and poses a sig- nificant threat to other officers or citizens. Finally, the courts will admit evidence resulting from a wrongful arrest, as long as the mistake was a reasonable one.

Searches with warrants are subject to many of the same restrictions as arrests with warrants. However, search warrants are also constrained in terms of time, insofar as the police cannot wait too long to serve the warrant or take too long to look for evidence. Also, the courts frequently require that search warrants be served during daylight hours. The scope of the search must be limited to the object of the search, the seized evidence must be inventoried and a list given to the homeowner, and the police cannot bring members of the media along when serving a search warrant if the media presence serves no legitimate law enforcement objectives.

3. EXPLAIN HOW BODILY INTRUSIONS, THE USE OF TRACKING DEVICES, AND ELECTRONIC SURVEILLANCE CREATE “SPECIAL CIRCUMSTANCES” FOR FOURTH AMENDMENT PURPOSES.

The traditional Fourth Amendment approach to determining constitutionality does not always work in the case of bodily intrusions or when tracking devices, video recordings, or detection devices are used. Additionally, the interception of communications, in particular, is governed by a restrictive body of law (e.g., Title III of the Omnibus Crime Control and Safe Streets Act of 1968).

also created the secretive Foreign Intelligence Surveillance Court (50 U.S.C. Section 1802[a][1][A]). The court hears requests for surveillance warrants. Before a warrant is issued, the court must find probable cause that:

• the target of the surveillance is a “foreign power” or “agent of a foreign power,” • the places at which surveillance is sought are being used or will be used by the foreign power or agent, • U.S. persons are properly protected (50 U.S.C Section 1805; 50 U.S.C. Section 1801[5]).

Electronic surveillance law continues to change at a feverish pace. What’s more, when changes are made, they often incorporate “sunset” clauses that essentially terminate the legislation at a specified date. One exam- ple of this is the Protect America Act, signed into law on August 5, 2007. Among other things, the act removed the warrant requirement for government surveillance of foreign intelligence targets. A sunset clause was included partly because of the controversy surrounding the legislation, but certain provisions have since been reauthorized by the FISA Amendments Act of 2008. The latter is set to expire at the end of 2012.

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146 Part 2 • Search and Seizure

Review Questions

1. Explain the three components of a valid warrant. 2. How does the showing of probable cause differ for an

arrest warrant versus a search warrant? 3. How does particularity differ for an arrest warrant

versus a search warrant? 4. Distinguish between a stop and an arrest. 5. Distinguish between a stop and a nonstop. 6. When is an arrest warrant required? 7. What reasons have been offered for the so-called

announcement requirement with regard to arrest and search warrants?

8. When can the announcement requirement be dispensed with?

9. Briefly summarize the Supreme Court’s view on property damage during the service of a warrant.

10. Summarize the Supreme Court’s decisions in Tennessee v. Garner and Graham v. Connor. Why are these decisions important to criminal procedure?

11. What restrictions exist concerning the scope and manner of a search with a warrant?

12. What is the Supreme Court’s view on the media’s presence during the service of a search warrant? What is the leading case in this area?

13. Explain the two leading cases that address bodily intrusion during the course of a search.

14. What are the main statutes regulating electronic surveillance?

Key Cases

Warrant Components

• Coolidge v. New Hampshire, 403 U.S. 443 (1971) • Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) • Maryland v. Garrison, 480 U.S. 79 (1987) • Andresen v. Maryland, 427 U.S. 463 (1976)

Arrests with Warrants

• Davis v. Mississippi, 394 U.S. 721 (1969) • Payton v. New York, 445 U.S. 573 (1980) • Steagald v. United States, 451 U.S. 204 (1981)

• Hudson v. Michigan, 547 U.S. 586 (2006) • Sabbath v. United States, 391 U.S. 585 (1968) • Tennessee v. Garner, 471 U.S. 1 (1985) • Graham v. Connor, 490 U.S. 386 (1989)

Searches with Warrants

• Gooding v. United States, 416 U.S. 430 (1974) • Harris v. United States, 331 U.S. 145 (1947) • Michigan v. Summers, 452 U.S. 692 (1981) • City of West Covina v. Perkins, 525 U.S. 234 (1999) • Wilson v. Layne, 526 U.S. 603 (1999)

Key Terms

arrest 113 arrest warrant 106 deadly force 124 Electronic

Communications Privacy Act 143

Federal Communications Act 142

Foreign Intelligence Surveillance Act 144

Foreign Intelligence Surveillance Court 145

neutral and detached magistrate 106

nondeadly force 125 nonstop 116 particularity 108 Protect America

Act 145 search warrant 106

stop 113 Title III of the

Omnibus Crime Control and Safe Streets Act 143

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Chapter 4 • Searches and Arrests with Warrants 147

Web Links and Exercises

1. Developing a policy manual: Read Chief W. Dwayne Orrick’s article “Developing a Police Department Policy- Procedure Manual,” published in the International Association of Chiefs of Police Big Ideas for Smaller Police Departments newsletter. What, according to him, is the best way to develop a policy-procedure manual? What role do court recommendations play in his recommen- dations? You can find the article on page 4 here:

http://www.theiacp.org/LinkClick.aspx?fileticket=On6JR ot3kSc%3d&tabid=392 (accessed February 16, 2011).

2. Foreign Intelligence Surveillance Act: Read about recent developments in FISA. What activities has the FISA Court reported to Congress?

Suggested URL: http://www.fas.org/irp/agency/doj/fisa (accessed February 16, 2011).

3. Knock and announce: Read more about the knock-and- announce rule at the Federal Law Enforcement Training Center’s website. Summarize the federal knock-and- announce rule. Is federal procedure different from state and local procedure?

Suggested URL: http://www.fletc.gov/training/pro- grams/legal-division/the-informer/research-by-sub- ject/4th-amendment/knockandannounce.pdf/view (accessed April 6, 2011).

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